Britain Goes to War
Britain Goes to War:
An Analysis of the Developing Role of the House of
Commons in Determining Whether HM Forces
Should Be Deployed on Military Operations
EMILY YOUNG*
Abstract
Conventionally, the exercise of British foreign policy matters has been reserved for the executive.
However, recent conflicts involving Britain suggest that this traditional position is undergoing a
fundamental transformation in order to enhance democracy and accountability by augmenting the
role of Parliament in conflict decisions. This revolution ultimately stems from the necessity to renew
trust and confidence in Britain’s democratic institutions and to ensure that there is sufficient
oversight and scrutiny of governmental decisions. The purpose of this analysis is to highlight that the
present position in the United Kingdom regarding Parliament’s role in decisions to pursue military
action is wholly unclear. By analysing the development of the legislature’s role and the emergence of a
constitutional convention the current inadequacies will be exposed and various suggestions for reform
will be offered.
Keywords: British Constitutional Law, the Royal Prerogative, Constitutional Conventions, Armed
Forces, War Powers, Military Action, International Accountability
1. Introduction
How odd – perhaps bizarre – it is that the approval of both
Houses of Parliament is required for pieces of technical, and
often trivial, subordinate legislation, whereas it is not needed at
all before men and women can be committed to the possibility of
disfigurement or death.1
Currently the deployment of British Armed Forces (HM Forces) to an armed conflict
is certified by the Royal Prerogative, which is exercised by the executive on behalf of
the Crown. These powers have evolved in the British Constitution over hundreds of
years; however, the prerogative power for war making has survived predominantly
unharmed into the twenty-first century. 2 In recent years the debate has been
amplified due to conflicts in Iraq and Syria, which have highlighted the increasing
role of the House of Commons in constraining the Government on major issues of
* The author is a 2015 LLB (First Class Honours) graduate of the University of Aberdeen, currently
completing the Diploma in Professional Legal Practice (DPLP) at the same university.
1 Rodney Brazier, Constitutional Reform (2nd edn, OUP 1999) 123.
2 James Gray and Mark Lomas, Who Takes Britain to War? (The History Press 2014) 11.
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Britain Goes to War
foreign policy. Consequently, there are justifiable concerns that the balance between
legislative and executive power over the armed forces may not be configured in such
a way as to ensure the highest conceivable level of democracy, accountability and
transparency in decision-making.3 Clearly, given the huge implications, it is critical
that decisions to go to war be subjected to rigorous scrutiny and review. 4
Unquestionably, when it comes to an issue that is of such fundamental importance to
the nation, to the greatest extent possible approval should be sought from the
people’s representatives in the Commons. The flow of power from British citizens to
the Government should be balanced by the ability of Parliament to hold the
Government to effective account.5 Consequently there is a growing feeling within
the constitutional system that Parliament must have a role in deployment decisions.6
In Britain’s modern democracy it is now evident that resistance to the assertion of
the role of Parliament is crumbling. 7 However, it is apparent that this
‘democratisation’ of war could have far-reaching consequences. Therefore, it is vital
that parliamentary involvement does not imperil the necessity to, above all, protect
national interests. Admittedly, this issue is complex, with no rapid or
straightforward solution. Clearly, there are strong differences of opinion amongst
politicians and the public at large, thus a resolution must be approached cautiously
and astutely. Nonetheless, this must not detract from the urgent need for clarity
regarding the role of Parliament in decisions to commit British forces.
This analysis will critically examine the development of the relationship
between the Government and the House of Commons in determining whether HM
Forces should be deployed overseas. Its main objective is to convey that regardless of
arguments in its favour, the unfettered use of the Royal Prerogative to go to war is
no longer politically tolerable. It is clear that despite claims of an emerging
constitutional convention, the current role of Parliament is unclear and clarification
is urgently required. Different reformation proposals will be assessed in order to
satisfy calls for democracy in war-powers (the power to declare war) while
preserving the aptitude of the executive to take the country to war if this
Stuart Wilks–Heeg and Andrew Black, ‘Despite David Cameron’s Defeat on Intervening in Syria, the
UK Parliament Actually Has Relatively Weak War Powers Compared to Legislatures in Other
Democracies’ (The London School of Economics and Political Science, 30 August 2013)
<http://blogs.lse.ac.uk/europpblog/2013/08/30/despite-david-camerons-defeat-on-intervening-insyria-the-uk-parliament-actually-has-relatively-weak-war-powers-compared-to-legislatures-in-otherdemocracies/> accessed 17 November 2015.
4 Nigel White, Democracy Goes to War: British Military Deployments under International Law (OUP 2009)
269.
5 Lord Chancellor and Secretary of State for Justice, The Governance of Britain (Cm 7170, 2007)
<www.gov.uk/government/uploads/system/uploads/attachment_data/file/228834/7170.pdf>
accessed 17 November 2015.
6 House of Commons Public Administration Select Committee, Taming the Prerogative: Strengthening
Ministerial Accountability to Parliament (HC 422, 4 March 2004)
<www.publications.parliament.uk/pa/cm200304/cmselect/cmpubadm/422/422.pdf> accessed 17
November 2015; Philip Towle, ‘Going to War: British Debates from Wilberforce to Blair (Palgrave
Macmillan 2009); House of Lords Constitution Committee, Constitutional Arrangements for the Use of
Armed Force (HL Paper 46, 24 July 2013)
<www.publications.parliament.uk/pa/ld201314/ldselect/ldconst/46/46.pdf> accessed 17
November 2015.
7 HC Deb 15 May 2007, vol 460, col 512.
3
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commitment is necessary. It will be recommended that a parliamentary resolution is
preferable to allow Parliament’s role to become a more permanent fixture in the
British Constitution.
2. The Conventional Position
The British Constitution is unusual due to its ‘uncodified’ nature. Unlike the vast
majority of countries there is no single consolidated document portraying the
balance between the divisions of the state and their legal powers and limits. The
British Constitution has instead evolved over centuries and represents an
accumulation of legislation, judicial precedent, treaties and conventions. A further
historic source of the constitution is what some see as the ‘democratically
unsatisfactory anomaly’8 known as the Royal Prerogative.9 This chapter will discuss
the conventional position regarding the decision to deploy the armed Forces by
assessing the Royal Prerogative and the traditional role of Government and
Parliament.
A. The Royal Prerogative
The Royal Prerogative is a notoriously difficult concept to define. 10 Nevertheless,
Dicey explains the term as ‘the name for the residue of discretionary power left at
any moment in the hands of the Crown, whether such power be in fact exercised by
the King himself or by his Ministers.’11 However, despite complications in defining
this term, the most perplexing characteristic is unquestionably that its exercise does
not require the approval of Parliament. 12 The Public Administration Select
Committee identified three main areas of prerogative powers: the legal prerogatives
of the Crown, 13 the Crown’s constitutional prerogatives 14 and the prerogative
Andrew Blick, Codifying – or Not Codifying – the UK Constitution: A Literature Review (King’s College
London: Centre for Political and Constitutional Studies, February 2011) 10.
<www.parliament.uk/pagefiles/56954/CPCS%20Literature%20Review%20(4).pdf> accessed 17
November 2015.
9 The main prerogative powers include regulating the civil service, making treaties, declaring war,
deploying the armed forces and granting pardons, see Lucinda Maer and Oonagh Gay, The Royal
Prerogative (House of Commons Library, 2009) (SN/PC/0386) 4.
10 Sebastian Payne provides reasons for this in ‘The Royal Prerogative’ in S Payne and M Sunkin (eds),
The Nature of the Crown: A Legal Analysis and Political Analysis (OUP 1999) 77; House of Commons
Public Administration Select Committee, Taming the Prerogative: Strengthening Ministerial
Accountability to Parliament (HC 422, 4 March 2004) 5
<www.publications.parliament.uk/pa/cm200304/cmselect/cmpubadm/422/422.pdf> accessed 17
November 2015 .
11 Albert V Dicey, Introduction to the Study of the Law of the Constitution (10th edn, Macmillan 1961) 424.
12 Thomas Poole, ‘United Kingdom: The Royal Prerogative’ (2010) 8 International Journal of
Constitutional Law 146.
13 House of Commons Public Administration Select Committee, Taming the Prerogative: Strengthening
Ministerial Accountability to Parliament (HC 422, 4 March 2004) 5
<www.publications.parliament.uk/pa/cm200304/cmselect/cmpubadm/422/422.pdf> accessed 17
November 2015.
14 ibid 6.
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executive powers.15 The legal authority for conducting defence of the realm rests
with the latter. This is said to be the most significant of the prerogative powers.16
Under the Royal Prerogative, which derives from the Bill of Rights 1689,17 the
Government on behalf of the Crown can make decisions pertaining to defence and
the armed forces. This long-standing constitutional convention means that the
executive has liberty of action in this field; Parliament has no formal, legally
established role. The nature of the war prerogative ensures that the Government’s
freedom to act is not constrained, which makes it possible, in theory, vicariously to
pursue national interests. Consequently, for centuries, the executive has been able to
exercise authority in the name of the Monarch without consulting the British
population and their representatives.18
The inherently undemocratic nature of the prerogative has led to it repeatedly
being described by the judiciary as ‘the clanking of mediaeval chains of the ghosts of
the past.’19 The exercise of prerogative powers is inconsistent with Britain’s central
constitutional values: parliamentary supremacy and the rule of law. Firstly, ‘while
parliamentary approval is not generally needed before action is taken, ministers are
responsible to Parliament for their policies and decisions.’ 20 Secondly, decisions by
the Government to use the armed forces are not reviewable by the courts and
therefore bypass normal methods of democratic control.21 Consequently, there is an
urgent need to re-evaluate the balance between the demands of democratic
accountability in the modern era and the effective prosecution of war.22
B. The Traditional Relationship between the Government and Parliament
Strictly speaking, the Government is accountable to Parliament. Every year,
Parliament must vote either in favour of or against the level of defence expenditure,
and every five years, it must renew the legal basis for the existence of the armed
ibid.
House of Commons Public Administration Select Committee, Taming the Prerogative: Strengthening
Ministerial Accountability to Parliament (HC 422, 4 March 2004) 9
<www.publications.parliament.uk/pa/cm200304/cmselect/cmpubadm/422/422.pdf> accessed 17
November 2015; AW Bradley and KD Ewing, Constitutional and Administrative Law (14th edn, Pearson
Education Limited 2007) 260.
17 The Bill of Rights 1689; The Bill of Rights is discussed in depth in Lucinda Maer and Oonagh Gay,
The Bill of Rights 1689 (House of Commons Library, 5 October 2000) (SN/PC/0293).
18 Secretary of State for Justice and Lord Chancellor, The Governance of Britain (Cm 7170, 2007) 15;
Colin Warbrick, ‘The Governance of Britain’ (2008) 57 ICLQ 209, 212.
19 United Australia Ltd v Barclays Bank Ltd [1941] AC 1 (HL) 29 (Lord Atkin); Council of Civil Service
Unions v Ministers for the Civil Service [1985] AC 374 (HL) 417 (Lord Roskill); R (Bancoult) v Secretary of
State for Foreign & Commonwealth Affairs [2001] 2 WLR 1219; Thomas Poole, ‘United Kingdom: The
Royal Prerogative’ (2010) 8 International Journal of Constitutional Law 146, 147.
20 AW Bradley and KD Ewing, Constitutional and Administrative Law (14th edn, Pearson Education
Limited 2007) 324.
21 China Navigation Co Ltd v Attorney General [1932] 2 KB 197 (CA); Chandler v Director of Public
Prosecutions [1964] AC 763 (HL) 798 (Viscount Radcliffe).
22 Nigel D White, ‘International Law, the United Kingdom and Decisions to Deploy Troops Overseas’
(2010) 59 ICLQ 814, 815.
15
16
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forces and the system of military law through the passage of an Armed Forces Bill. 23
At first glance, these measures satisfy the prerequisite set out in Article VI of the Bill
of Rights, that ‘the raising or keeping of a standing army within the kingdom in time
of peace unless it be with the consent of Parliament is against the law.’ 24 However, in
practice, Parliament’s powers lack substance and effect. In theory prerogative power
could allow the Government to send armed forces into conflict without
parliamentary debate, or, pivotally, without their consent.25
Nevertheless, the power to deploy the armed forces is not absolute. Despite
the fact that there is no formal process for involving Parliament, it has always been
the Government’s practice, unless requirements of secrecy or security dictate
otherwise, to keep Parliament regularly informed of the existence and progress of
overseas engagements. 26 As Brazier observes: ‘Governments naturally encouraged
Parliamentary reticence.’27 In fact, the Commons Library Parliamentary Information
List indicates that over two-hundred statements or debates on defence matters have
taken place in the House since December 1982.28 This ‘informative’ as opposed to
‘consultative’ nature is evident when analysing various historical precedents. The
Second World War represents this traditional position whereby Parliament is kept
informed but the Government controls the depth and presentation of information.
When war against Germany was declared in 1939, Neville Chamberlain openly told
the House that they were ‘not in possession of all the information which we have.’29
Thus, there were numerous debates and statements on the war but use of the Royal
Prerogative remained distinctly unfettered and unquestioned.
The reality of applying the prerogative in foreign affairs is exhibited by the
settlement of the Falklands in 1982. 30 Margaret Thatcher, during a Commons
discussion over the conflict, reaffirmed that ‘it is the inherent jurisdiction of the
Government’ to reach these decisions.31 The leader of the opposition, Neil Kinnock,
claimed ‘the House of Commons has the right to make a judgment.’ 32 However, Mrs
Thatcher asserted that ‘the Government has this responsibility, will shoulder that
responsibility before this house and defend their decision.’33 Thus, the Government
confined Parliament’s involvement to fourteen statements and a further five
Armed Forces Act 2011; Stuart Wilks-Heeg, Andrew Blick and Stephen Crone, ‘Parliament Has
Relatively Weak War Powers Compared to Legislatures in Other Democracies’ (Democratic Audit
UK, 29 August 2013) <www.democraticaudit.com/?p=1340> accessed 17 November 2015.
24 The Bill of Rights 1689, art VI.
25 The Secretary of State for Justice and Lord Chancellor, The Governance of Britain: War Powers and
Treaties: Limiting Executive Powers (Cm 7239, October 2007) 22
<www.gov.uk/government/uploads/system/uploads/attachment_data/file/243164/7239.pdf>
accessed 17 November 2015.
26 ibid.
27 Philip Towle, Going to War: British Debates from Wilberforce to Blair (Palgrave Macmillan 2009) 130.
28 House of Commons Library, House of Commons Debates on Deployment of Armed Forces (SN/
PC/3254).
29 HC Deb 3 September 1939, vol 351, col 291.
30 Nigel D White, ‘International Law, the United Kingdom and Decisions to Deploy Troops Overseas’
(2010) 59 ICLQ 814, 815.
31 HC Deb 11 May 1982, vol 23, col 597.
32 ibid.
33 ibid col 598.
23
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adjournment debates before Argentinian surrender, yet none resulted in a hostile
vote. 34 In fact, subsequent instances reveal that there has been no parliamentary
approval in: the Suez crisis; the Gulf War; the deployment of the RAF in Bosnia
during the 1990s by the Major Government; the persistent air strikes against targets
in Serbia and Kosovo by the Blair Government and the long campaign in
Afghanistan.35 Therefore, it is clear that the use of the Royal Prerogative to take
Britain to war was not challenged in any meaningful sense up to and including the
Afghanistan Conflict in 2001 since there was ‘no vote on any matter of substance.’36
Evidently, the manner in which the Commons oversees governmental
decisions can vary, either by the involvement of select committees, parliamentary
questions and debates (in both Houses), or, on some occasions, a vote. But the
Government, in exercising its own political judgment, decides the extent of
Parliament’s involvement; its course of action is not dictated by legal requirements.37
Thus, it is at the discretion of the Prime Minister to seek approval for his policy in an
international crisis should he desire. Each individual case is different and therefore
there are variations concerning whether Parliament should be involved or not. 38
Nevertheless, to many, this concept of the Prime Minister and the Cabinet taking the
country to ‘war’ on the basis of powers inherited from medieval monarchs is
criticised. The lack of parliamentary involvement in these instances may be
accurately identified as an absence of democratic accountability over the most
important decision a government can make.39
3. Changing Expectations
There are several imperative factors, which over recent decades have influenced the
debate over Parliament’s role in war-powers. As a result, the democratically elected
legislature and the country as a whole are increasingly unwilling to leave use-offorce decisions solely to the executive.40 This chapter analyses the changing nature of
James Gray, ‘Crown versus Parliament: Who Decides on Going to War?’ (Royal College of Defence
Studies, July 2003) 5 <www.ukdf.org.uk/assets/downloads/GR175CrownversusParliamentWhoDecidesonGoingtoWarbyJamesGrayMP.pdf> accessed 17 November 2015.
35 Gavin Philipson, ‘’Historic’ Commons’ Syria Vote: The Constitutional Significance (Part 1)’ (UK
Constitutional Law Association, 19 September 2013)
<http://ukconstitutionallaw.org/2013/09/19/gavin-phillipson-historic-commons-syria-vote-theconstitutional-significance-part-i/> accessed 17 November 2015.
36 James Gray, ‘Crown versus Parliament: Who Decides on Going to War?’ (Royal College of Defence
Studies, July 2003) 14 <www.ukdf.org.uk/assets/downloads/GR175CrownversusParliamentWhoDecidesonGoingtoWarbyJamesGrayMP.pdf> accessed 17 November 2015.
37 Nigel D White, ‘International Law, the United Kingdom and Decisions to Deploy Troops Overseas’
(2010) 59 ICLQ 814, 815.
38 Wolfgang Wagner, Dirk Peters and Cosima Glahn, Parliamentary War Powers around the World, 19892004. A New Dataset (Geneva Centre for the Democratic Control of Armed Forces (DCAF), Paper no
22, 2010) 100 <www.dcaf.ch/content/download/35832/526881/file/OP_22.pdf> accessed 17
November 2015.
39 Claire Taylor and Richard Kelly, Parliamentary Approval for Deploying the Armed Forces: An
Introduction to the Issues (House of Commons Library, Research Paper 08/88, December 2008) 15.
40 ibid 16.
34
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military operations, the increasing role of international accountability and the effect
these changes have had on the developing role of Parliament in scrutinising
governmental decisions.
A. The Changing Nature of Military Operations
In recent years there has been a crucial change in the nature of conflict in which
Britain is involved and it is apparent that a new kind of ‘war’ is developing,
primarily since the majority of recent conflicts concern either ‘failed states’ or antiterrorism operations.41 Straightforward invasions have become less common, the last
being the invasion of Iraq in 2003.42 Nigel Inkster observes: ‘inter-state warfare has
rather gone out of fashion (…) however, we are seeing a lot of internal intra-state
disputes.’43 Consequently, there is increasing difficulty in drawing clear distinctions
between military and diplomatic engagements in foreign crises. 44 This has been
further complicated by the emergence of new, unconventional security threats such
as international terrorism.45
Additionally, the role of the media in shaping public opinion as regards
waging war is now impacting upon the advancement of conflicts. An emerging
characteristic of this ‘new war’ is that the media now more powerfully mediates the
relationship between citizens and their political institutions.46 Shaw suggests that the
nature of Western warfare changed after the Vietnam War since it became clear that
it is necessary to legitimise a military intervention in the eyes of the public in order
for it to succeed.47 However, contrary to Shaw’s claim, it can be observed that most
people in Britain have become more sensitive to civilian and military casualties, not
least because of the ‘ubiquity of television cameras which can show the destructive
House of Lords Constitution Committee, Constitutional Arrangements for the Use of Armed Force (HL
Paper 46, 24 July 2013) 5
<www.publications.parliament.uk/pa/ld201314/ldselect/ldconst/46/46.pdf> accessed 17
November 2015.
42 Patrick Cockburn, ‘The Nature of War Has Changed, Which is Bleak News for Syria’s Minorities’
The Independent (London, 1 March 2014) <www.independent.co.uk/voices/comment/the-nature-ofwar-has-changed-which-is-bleak-news-for-syrias-minorities-9162694.html> accessed 11 November
2014.
43 House of Lords Constitution Committee, Constitutional Arrangements for the Use of Armed Force (HL
Paper 46, 24 July 2013) 16
<www.publications.parliament.uk/pa/ld201314/ldselect/ldconst/46/46.pdf> accessed 17
November 2015.
44 The techniques of warfare have also evolved particularly in relation to technological enhancement
in surveillance, intelligence-gathering, and cyber-warfare. See House of Lords Constitution
Committee, Constitutional Arrangements for the Use of Armed Force (HL Paper 46, 24 July 2013) 16
<www.publications.parliament.uk/pa/ld201314/ldselect/ldconst/46/46.pdf> accessed 17 November
2014.
45 David Jenkins, ‘Efficiency and Accountability in War Powers Reform’ (2009) 14 Journal of Conflict
& Security Law 145, 146.
46 J Strömbäck, ‘Four Phases of Mediatization: An Analysis of the Mediatization of Politics’ (2008)
13(3) The International Journal of Press/Politics 228–46; Chiara de Franco, Media Power and the
Transformation of War (Palgrave Macmillan 2010) 2.
47 Martin Shaw, The New Western Way of War: Risk-Transfer War and Its Crisis in Iraq (Polity 2005) 75;
Chiara de Franco, Media Power and the Transformation of War (Palgrave Macmillan 2010) 5.
41
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effect of war.’48 People are able more intimately to follow British involvement in
conflict and observe the realities of life at war for soldiers and the effect on enemy
territory. The international community justifiably has an extremely low tolerance for
casualties in military missions that are essentially humanitarian – that is, for
missions in which clear national interests do not appear to be at stake. 49 This is
evident in considering the differences in support for ‘wars of necessity’ and ‘wars of
choice’.50
Furthermore, the role of relatives of soldiers who have been killed has been
heightened since many have taken to questioning publicly the lawfulness of past
deployments. Baroness Hale concluded that this is not a significant factor in
enhancing the role of Parliament because ‘the lawfulness of war is an issue between
states, not between individuals or between individuals and the state.’51 Nevertheless,
these declarations can affect the public’s view of a decision to wage war and reduce
its credibility.52 In recent years the need for involvement in humanitarian concerns
and human rights abuses has emerged as a standard justification for overseas
intervention. But while these incidences may be genuine, the media’s reporting
tends to be ‘unbalanced, often misleading and occasionally fabricated.’53
Moreover, due to the legal implications of declaring war, and
notwithstanding the questionable legality of such a move in the first place, most
states have moved away from using the term ‘war’ and prefer instead terms like
‘armed conflict’ and ‘hostilities.’54 Though ‘war’ is still used colloquially and many
conflicts are described as ‘wars’ for the sake of convenience, 55 war, by definition, is
between two countries. Ultimately, recent conflicts are less interstate and more
intrastate. The UK has made no declaration of war since Siam in 1942, and it is
unlikely that it will ever make another.56 Developments in international law since
Philip Towle, Going to War: British Debates from Wilberforce to Blair (Palgrave Macmillan 2009) 130.
John Mueller, ‘Force, Legitimacy, Success, and Iraq’ in D Armstrong, T Farrell and B Maiguaschca
(eds), Force and Legitimacy in World Politics (CUP 2005) 116.
50 For an in depth discussion of these terms see House of Lords Select Committee on the Constitution,
Waging War: Parliament’s Role and Responsibility (HL Paper 235 – I, 27 July 2006) 12
<www.publications.parliament.uk/pa/ld200506/ldselect/ldconst/236/236i.pdf> accessed 17
November 2015.
51 R (Gentle) v The Prime Minister [2008] UKHL 20, [2008] 1 AC 1356 [57] (Baroness Hale).
52 For example, this was evident in the Iraq War in 2003 since many believed that countless lives were
lost unnecessarily. See Philip Towle, Going to War: British Debates from Wilberforce to Blair (Palgrave
Macmillan 2009) 165.
53 Patrick Cockburn, ‘The Nature of War Has Changed, Which is Bleak News for Syria’s Minorities’
The Independent (London, 1 March 2014) <www.independent.co.uk/voices/comment/the-nature-ofwar-has-changed-which-is-bleak-news-for-syrias-minorities-9162694.html> accessed 11 November
2014.
54 Claire Taylor and Richard Kelly, Parliamentary Approval for Deploying the Armed Forces: An
Introduction to the Issues (House of Commons Library, Research Paper 08/88, December 2008) 15.
55 Useful distinctions of war can be found at Yoram Dinstein, War, Aggression and Self-Defence (3rd
edn, CUP 2001) 3; Paul Bowers, Parliament and the Use of Force (The House of Commons Library, SN/
IA/1218, 25 February 2003) 5.
56 House of Lords Select Committee on the Constitution, Waging War: Parliament’s Role and
Responsibility (HL Paper 235 – I, 27 July 2006) 7
<www.publications.parliament.uk/pa/ld200506/ldselect/ldconst/236/236i.pdf> accessed 17
November 2015.
48
49
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1945 may well have made the declaration of war redundant as a recognised
international legal mechanism.
Clearly, there are difficulties regarding where the line should be drawn with
parliamentary scrutiny. This was demonstrated in the recent debate over UK
military involvement in Syria.57 The changing nature of war has thus brought many
challenges for the relationship between Parliament and Government since recent
conflicts have been inherently controversial and complicated.
B. Changing International Accountability
Since British constitutional law has provided little by way of legal constraint on the
prerogative powers of the Government to deploy military forces, the focus has been
on international law to restrict executive decisions and therefore hold them to
account.58 Pivotally, the majority of recent interventions involving the commitment
of the British armed forces have been in collaboration with other states or as part of
the UK’s commitment to multi-national institutions such as the UN, EU, and
NATO.59
International law regulates interstate relations to the benefit of all states and
provides a ‘discourse on the legitimacy of using force.’ 60 However, methods of
enforcement are somewhat limited, because Britain possesses the power to veto the
proposals of the most effective international organ – the United Nations Security
Council (UNSC).61 Interestingly, the use of force was prohibited under Article 2(4) of
the UN Charter62 due to the millions of lives lost during the World Wars of the
twentieth century. The only exceptions permitted are the use of force in selfdefence 63 and when authorized by the UNSC for the purposes of protecting
The conflict in Syria will be discussed in depth later in this article.
The House of Lords Select Committee has acknowledged the important role of international law:
‘The rules of international law on the use of force take on an enhanced significance as the only
apparent limitation on the prerogative.’ See House of Lords Select Committee on the Constitution,
Waging War: Parliament’s Role and Responsibility (HL Paper 235 – I, 27 July 2006) 15
<www.publications.parliament.uk/pa/ld200506/ldselect/ldconst/236/236i.pdf> accessed 17
November 2015.
59 The Secretary of State for Justice and Lord Chancellor, The Governance of Britain: War Powers and
Treaties: Limiting Executive Powers (Cm 7239, October 2007) 24
<www.gov.uk/government/uploads/system/uploads/attachment_data/file/243164/7239.pdf> 17
November 2015.
60 David Armstrong, Theo Farrell, and Helene Lambert, International Law and International Relations
(CUP 2007) 117.
61 Nigel D White, ‘International Law, the United Kingdom and Decisions to Deploy Troops Overseas’
(2010) 59 ICLQ 814, 817.
62 ‘All Members shall refrain in their international relations from the threat or use of force against the
territorial integrity or political independence of any state, or in any other manner inconsistent with
the Purposes of the United Nations.’ See Charter of the United Nations (24 October 1945) art 2(4).
63 Article 51 of the UN Charter recognizes ‘the inherent right of individual or collective self-defence.’
The right of self-defence is subject to the two key principles of customary law on the use of force:
necessity and proportionality. See Charter of the United Nations, art 51.
57
58
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international peace and security.64 There have been attempts by states in recent years
to expand the right of self-defence to using force in response to terrorist attacks and
anticipatory self-defence.65 However, these are in fact only attempts and therefore
not considered to be international law.66
At an individual level, states may unintentionally be driven by countervailing
self-interests to violate international law – arguably the US-led war against Iraq is an
example of this since many in the US and UK polities falsified the threat from Iraq’s
weapons of mass destruction programmes.67 However, this war was undertaken not
only in violation of international law but in defiance of global opinion. 68 Never
before in history had there been such outcry from across the world to stave off an
impending war, but it was to no avail.69 America and Britain proceeded without UN
authority and without any real threat, resulting in a violation of international law.70
In October 2002, President George Bush warned the UN that failure to act
against the Saddam Hussein regime would lead the organization ‘to betray its
founding and prove irrelevant to the problems of our time.’71 He severely criticized
the UNSC for not ‘living up to its responsibilities.’72 In doing so Mr Bush was clearly
testing the power and application of international law. Sadly the realities of
proceeding without UN authority became apparent in the late recognition that the
UN was the only legitimate institution able to ‘broker a viable alternative to
permanent military occupation.’73 This disdain for international law demonstrated
by using force without UNSC authorisation has galvanised international opposition
to the US role in world affairs and has made it more difficult for the country to
persuade other states to follow its lead.74
Perhaps if the UK Government and the US75 had abided by international law
initially the Iraq War would never have occurred. Richard Falk appropriately
Chapter VII provides that the UNSC may authorise the use of force to protect or restore individual
peace and security. See Charter of the United Nations, ch VII; David Armstrong, Theo Farrell and
Helene Lambert, International Law and International Relations (CUP 2007) 117.
65 David Armstrong, Theo Farrell and Helene Lambert, International Law and International Relations
(CUP 2007) 123.
66 ibid.
67 ibid 147.
68 On 15 February 2003, eleven million people demonstrated against the Iraq War in eighty countries.
See Richard A Falk, The Costs of War: International Law, the UN, and World Order after Iraq (Routledge
2008) 2.
69 ibid 3.
70 Nigel D White, Democracy Goes to War: British Military Deployment under International Law (OUP
2009) 252.
71 George Bush, ‘Full Text of Bush Speech on Iraq’ (BBC News, Ohio, 8 October 2002)
<http://news.bbc.co.uk/1/hi/world/americas/2309049.stm> accessed 17 November 2015.
72 Heraldo Munoz, Solitary War: A Diplomat’s Chronicle of the Iraq War and Its Lessons (Fulcrum
Publishing 2008) 1.
73 ibid 2.
74 For examples see Christian Reus-Smith, American Power and World Order (Polity 2004); David
Armstrong, Theo Farrell and Helene Lambert, International Law and International Relations (CUP 2007)
139.
75 The dreadful experience of the Vietnam War would also never have occurred if the US had revelled
in international support. See Richard A Falk, The Costs of War: International Law, the UN, and World
Order after Iraq (Routledge 2008) 3.
64
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Britain Goes to War
maintains that ‘contrary to popular belief, respecting the restraints of international
law better serves the national interest’ of states.76 Evidently, one of the key lessons of
the Iraq War has been the revalidation of the UN seal of approval and recognition of
the legitimacy it provides to actions consistent with its charter and agreed upon by
member states through its organs. By receiving a UN resolution, a government
appeals to international law to bolster the legitimacy of its military interventions and
provide justification to both the wider public and the international community of its
decision to deploy troops. The government can proceed in the knowledge that it has
international backing, which provides considerable support should decisions prove
erroneous. This renewed appreciation for international advocacy and accountability
has paved the way for meaningful reform between the British Government and the
Commons. Britain has been forced to consider its domestic accountability
mechanisms.
While international law has an influence on debates in British politics, it is not
always a decisive factor in preventing the final decision to go to war. Critically,
serious doubts over the legality of operations have not deterred past governments
from making such decisions as in Suez or Iraq, nor have they ‘prevented Parliament
from supporting, or at least not undermining those decisions.’77 There are current
proposals for international legal advice to be put before Parliament during
discussions over proposed interventions.78 It is therefore anticipated that Parliament
will be better placed to challenge governmental actions. It is evident that Parliament
is now less willing to go into an intervention without support from international
bodies, in order to provide legitimacy and verify the legality of deployments.
Therefore, participation in the international institutions created in the twentieth
century has drawn attention to Britain’s national constitutional system and has
arguably contributed to the assertion of the role of Parliament as a check on the
executive’s military powers.79 Increased control of the executive, both at a national
and international level,80 seems appropriate to hold the Government effectively to
account in decisions which may ultimately result in the death of men and women.
By using international law as a key reference point, it is apparent that Parliament is
adopting a far more critical response to decisions to go to war.81
ibid 17.
Nigel White, Democracy Goes to War: British Military Deployments under International Law (OUP 2009)
279.
78 House of Lords Select Committee on the Constitution, Waging War: Parliament’s Role and
Responsibility (HL Paper 235 – I, 27 July 2006) 28
<www.publications.parliament.uk/pa/ld200506/ldselect/ldconst/236/236i.pdf> accessed 17
November 2015.
79 For a more in depth discussion into the effect of international developments on the national
position, see Lori Fisler Damrosch, ‘The Interface of National Constitutional Systems with
International Law and Institutions on Using Military Forces: Changing Trends in Executive and
Legislative Powers’ in Charlotte J Ku and K Harold (eds), Democratic Accountability and the Use of Force
in International Law (CUP 2002) 39.
80 Nigel D White, ‘The United Kingdom: Increasing Commitment Requires Greater Parliamentary
Involvement’ in Charlotte J Ku and K Harold (eds), Democratic Accountability and the Use of Force in
International Law (CUP 2002) 307.
81 Nigel D White, Democracy Goes to War: British Military Deployments under International Law (OUP
2009) 280.
76
77
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C. The Changing Relationship between Government and Parliament
The relationship between Parliament and Government is fundamental to each
political system. Philip Norton states: ‘Parliaments provide the means by which the
measures and actions of government are debated and scrutinised on behalf of
citizens,’82 thus providing a system for the concerns of voters, whether as individuals
or as groups, to be expressed. Therefore, in theory, the Prime Minister and the
Cabinet have authority to decide upon military decisions, with accountability to
Parliament through common techniques of oversight, as well as possessing ultimate
control due to its ability to bring down a government by a vote of no confidence, 83
and through monetary control.84 However, it is questionable whether these rules are
sufficiently robust when it comes to decisions about military force. As a result, there
are demands on Parliament to assert its authority fully over conflict decisions in
Britain’s
liberal
democracy.
Admittedly,
constitutional theorists
and
parliamentarians have questioned the Royal Prerogative for many years, but the
Syria vote, the Iraq War and subsequent arguments over the legality of military
intervention are regarded as having contributed significantly to raising the political
profile of the issue.85
i.
The Iraq War
In 2003 the Government entered ‘unchartered constitutional waters’ 86 when it
allowed three full-scale parliamentary debates resulting in a substantive vote, for the
first time before an operation began. This vote on military engagement in Iraq
represents a dynamic adjustment in Parliament’s role and the British Constitution.87
But what was different about the run-up to the Iraq War in comparison with other
conflicts? Why did Mr Blair consent to giving the Commons a vote on the matter?
Crucially, the conflict was different because there was no consensus about the
validity of Western involvement, or even the legal justification for such a war. Unlike
previous conflicts, the Iraq War was highly contentious. The Second World War,
Korean War, Falklands War, and First Gulf War, as well as military action in places
Philip Norton, Parliaments and Governments in Contemporary Western Europe, vol 1 (Routledge 2013) 1.
It is developed constitutional practice that in the event of a no confidence motion a government will
resign. The issue of confidence motions will be discussed in section 6 of this paper. For further
information see Richard Kelly, Confidence Motions (Parliament and Constitution Centre, House of
Commons Library, 13 May 2013).
84 Changes have also been made in the Government’s institutional arrangements in order to create an
internal accountability mechanism. The National Security Council was created in 2010 and reflects a
cross-departmental approach in an attempt to build confidence in the Government’s decisions in the
areas of security and defence. For more information see Joe Devanny and Josh Harris, The National
Security Council: National Security at the Centre of Government (Institute for Government 2014)
<www.instituteforgovernment.org.uk/sites/default/files/publications/NSC%20final%202.pdf>
accessed 17 November 2015.
85 Claire Taylor and Richard Kelly, Parliamentary Approval for Deploying the Armed Forces: An
Introduction to the Issues (House of Commons Library, Research Paper 08/88, December 2008) 15.
86 James Gray, ‘Crown versus Parliament: Who Decides on Going to War?’ (Royal College of Defence
Studies, July 2003) 14 <www.ukdf.org.uk/assets/downloads/GR175CrownversusParliamentWhoDecidesonGoingtoWarbyJamesGrayMP.pdf> accessed 17 November 2015.
87 The outcome of the vote was 412 in favour of action and 149 against. See HC Deb 18 March 2003,
vol 401, col 907.
82
83
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such as Bosnia, Sierra Leone, Kosovo and even to an extent Northern Ireland,
enjoyed a significant degree of parliamentary and public consensus about their
necessity.88 The nation supported executive use of the Royal Prerogative and thus it
was perfectly reasonable for the Prime Minister to make use of it. However, Mr Blair
adopted an interventionist strategy and it can be argued that he acted purely on the
basis of political expedience after success in Kosovo.89 According to Philip Towle:
‘The worst thing about Mr Blair’s missions-pretty-impossible is that they have
become coated with a patina of national pride. They seek to blend past glories with
present imperatives.’90
Mr Blair acted on impulse and the philosophy that ‘it is better to intervene
and try to make a difference than stay out and cope with the consequences at a later
time.’91 While Mr Blair was not advocating removal of the Royal Prerogative, he was
acknowledging demands for greater democratic involvement in war making.
However it is clear that prime ministerial use of the prerogative depends on the
nation trusting their leader to use it accurately and justly. Perhaps Mr Blair’s
unprecedented vote on Iraq was a symptom of the national collapse in confidence in
his regime. 92 Fundamentally, parliamentary support for Iraq was clouded by
uncertainty surrounding the adequacy of the intelligence information released to the
Commons before the vote. 93 At the time of submission of this paper the longoverdue Chilcot Commission94 is failing to publish its results.95 Undeniably, the Iraq
War resulted in an immense loss of confidence in the executive since Parliament
consented on the basis of false assertions 96 that there were weapons of mass
James Gray and Mark Lomas, Who Takes Britain to War? (The History Press 2014) 40.
For more information on the nature of the war in Kosovo see ibid 153-56.
90 John Pilger, ‘Blair Has Made Britain a Target’ The Guardian (London, 21 September 2001)
<www.theguardian.com/world/2001/sep/21/afghanistan.britainand911> accessed 17 November
2015; Philip Towle, Going to War: British Debates from Wilberforce to Blair (Palgrave Macmillan 2009) 66.
91 ‘Blair issues Africa Action Call’ (BBC News, 31 May 2007)
<http://news.bbc.co.uk/1/hi/uk_politics/6706623.stm> accessed 17 November 2015; Philip Towle,
Going to War: British Debates from Wilberforce to Blair (Palgrave Macmillan 2009) 142.
92 James Gray, ‘Crown versus Parliament: Who Decides on Going to War?’ (Royal College of Defence
Studies, July 2003) 28 <www.ukdf.org.uk/assets/downloads/GR175CrownversusParliamentWhoDecidesonGoingtoWarbyJamesGrayMP.pdf> accessed 17 November 2015.
93 A report by the Foreign Affairs Committee sought to establish whether accurate and complete
information was presented to Parliament in the period leading up to the military action, particularly
in respect of weapons of mass destruction. This issue of information released to Parliament will be
discussed in greater depth in the concluding chapter of this paper. See House of Commons Foreign
Affairs Committee, The Decision to Go to War in Iraq (HC 813- I, 3 July 2003)
<www.globalsecurity.org/intell/library/reports/2003/iraq_uk-hc-813.pdf> accessed 17 November
2015; ‘The decision to go to war in Iraq’ The Guardian (London, 8 July 2003)
<www.theguardian.com/media/2003/jul/08/Iraqandthemedia. politicsandiraq> accessed 17th
January 2015.
94 The Chilcot Commission was set up in June 2009 to investigate the causes of and justifications for
the Iraq War. See HC Deb 15 June 2009, vol 494, col 23.
95 Patrick Wintour, ‘Iraq Inquiry: Cameron to Demand Chilcot Name Publication Date’ The Guardian
(London, 4 August 2015) <www.theguardian.com/uk-news/2015/aug/04/iraq-inquiry-camerondemand-chilcot-names-publication-date> accessed 17 November 2015.
96 David Jenkins, ‘Efficiency and Accountability in War Powers Reform’ (2009) 14 Journal of Conflict
& Security Law 145, 146.
88
89
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destruction present in Iraq. Parliament is now sceptical of the actions of the
Government and is requiring more extensive evidence before sanctioning force.
The controversy over the invasion of Iraq, which perhaps more than anything
has motivated calls for reform, demonstrates just how nationally divisive such
decisions can be.97 A general consensus has emerged across the political spectrum
that there is a desperate need for war-powers to be subject to greater parliamentary
scrutiny.98
ii.
The Significance of the Vote on Syria
The decision to convene Parliament over Syria and its use of chemical weapons on
29 August 2013 represents a watershed moment for the broader debate on
Parliament’s role in conflict situations.99 Prime-Minister David Cameron proposed
that a ‘strong humanitarian response is required’ and that ‘this may, if necessary,
require military action.’ 100 This vote was the first time the long-established
constitutional principle of the Prime Minister making the ultimate decision
regarding waging war had been truly breached. Mr Cameron, whether deliberately
or inadvertently, significantly strengthened the position of Parliament. However, the
vote on Syria was different from the vote on Iraq in one key respect: Mr Blair treated
the vote in 2003 as tantamount to a vote of no confidence in his leadership, 101
whereas Mr Cameron made no suggestion that he would resign if he lacked the
support to carry out his planned attack on the Assad regime.
Nonetheless, the House rejected the motion by 332 to 220.102 This victory in
the House ‘represents a constitutional landmark’103 because it was the first time that
the Government had been defeated since the late eighteenth century 104 and was
publicly forced to reverse its policy. The Commons revealed that it ‘now has real
teeth and that it is not afraid to use them.’105 David Cameron displayed in the most
ibid.
See Julian Glover, ‘Queen’s Powers Should Be Removed, Says Cameron’ The Guardian (London, 6
February 2007) <www.theguardian.com/politics/2006/feb/06/uk.conservatives> accessed 17
November 2015.
99 The House of Commons debated a substantive motion, scheduled by the Prime Minister. See House
of Commons Political and Constitutional Reform Committee, Parliament’s Role in Conflict Decisions: A
Way Forward (HC 892, 20 March 2014) 6
<www.publications.parliament.uk/pa/cm201314/cmselect/cmpolcon/892/892.pdf> accessed 25
September 2015.
100 ibid.
101 Peter Harris, ‘The Implications of the Syria Vote: How Britain Goes to War (or Not)’
(OpenDemocracy, 11 September 2013) <www.opendemocracy.net/ourkingdom/peterharris/implications-of-syria-vote-how-britain-goes-to-war-or-not> accessed 17 November 2015.
102 HC Deb 29 August 2013, vol 556, col 1547.
103 Catherine Haddon, ‘War, Peace and Parliament: Experts Respond to the Government’s Defeat on
Syrian Intervention’ (The London School of Economics and Political Science, 2 September 2013)
<http://blogs.lse.ac.uk/politicsandpolicy/war-peace-and-parliament-experts-respond-to-thegovernments-defeat-on-syrian-intervention/> accessed 17 November 2015.
104 Claire Mills, Parliamentary Approval for Deploying the Armed Forces: An Update (House of Commons
Library, SN05908, 13 October 2014) 9.
105 Gavin Philipson, ‘’Historic’ Commons’ Syria Vote: The Constitutional Significance (Part 1)’ (UK
Constitutional Law Association, 19 September 2013)
97
98
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dramatic way that the legislature would make the ultimate decision, which
represents a direct challenge to the Royal Prerogative.106 On losing he claimed that
the Government had got the message that the House did not support military action
and would ‘act accordingly.’ 107 Whether one agrees with this decision and the
outcome or not, the vote was a reassertion of parliamentary supremacy: a strong
message to the executive that in the United Kingdom ultimate power resides with
Parliament and not the Prime Minister.108
4. Has a Constitutional Convention Emerged?
Subsequent to the above, it has been suggested that a constitutional convention109
has been created requiring prior parliamentary approval for any future military
action, thus limiting the prerogative power. In theory, these ‘unwritten maxims of
the constitution’110 exist to regulate the conduct of those holding public office. 111
Several well respected governing bodies, alongside the Government itself, have
recognised the existence of conventions. 112 However, conventions arise out of
continued practice, and therefore it is never certain at what point the practice
becomes, or ceases to be, a convention. As Aileen McHarg suggests, ‘conventions
develop; they are not made.’ 113 This chapter will examine the development of a
‘constitutional convention’. By analysing the evolution of Parliament’s role, it
<http://ukconstitutionallaw.org/2013/09/19/gavin-phillipson-historic-commons-syria-vote-theconstitutional-significance-part-i/> accessed 17 November 2015.
106 HC Deb 29 August 2013, vol 556, col 1428.
107 ibid col 1556; Gavin Philipson, ‘’Historic’ Commons’ Syria Vote: The Constitutional Significance
(Part 1)’ (UK Constitutional Law Association, 19 September 2013)
<http://ukconstitutionallaw.org/2013/09/19/gavin-phillipson-historic-commons-syria-vote-theconstitutional-significance-part-i/> accessed 17 November 2015.
108 James Hallwood, ‘Comment: The Syria Vote Was a Triumph of Parliamentary Sovereignty’ (The
Constitutional Society, 30 August 2013) <www.consoc.org.uk/2013/08/comment-the-syria-vote-wasa-triumph-of-parliamentary-sovereignty/> accessed 17 November 2015.
109 There is significant debate over the definition of constitutional conventions: AV Dicey, Introduction
to the Study of the Law of the Constitution (10th edn, Macmillan 1961) 417; Ivor Jennings, The Law and the
Constitution (5th edn, University of London Press 1959) 81; Geoffrey Marshall and Grahame C
Moodie, Some Problems of the Constitution (5th edn, Hutchinson 1971) 67; Phillip O’Hood, Constitutional
and Administrative Law (7th edn, Sweet & Maxwell 1987) 113.
110 John Stuart Mill, Considerations on Representative Government (first published 1861, Prometheus
1991) 87.
111 AW Bradley and KD Ewing, Constitutional and Administrative Law (14th edn, Pearson Education
Limited 2007) 24.
112 House of Commons Public Administration Select Committee, Taming the Prerogative: Strengthening
Ministerial Accountability to Parliament (HC 422, 4 March 2004) 25
<www.publications.parliament.uk/pa/cm200304/cmselect/cmpubadm/422/422.pdf> accessed 17
November 2015; House of Lords Select Committee on the Constitution, Waging War: Parliament’s Role
and Responsibility (HL Paper 235 – I, 27 July 2006) 35
<www.publications.parliament.uk/pa/ld200506/ldselect/ldconst/236/236i.pdf> accessed 17
November 2015; HC Deb 10 March 2011, vol 524, col 1066.
113 Aileen McHarg, ‘Reforming the United Kingdom Constitution: Law, Convention, Soft Law’ (2008)
71 Modern Law Review 853, 857.
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becomes evident that the substance of the ‘convention’ is vague, suggesting that
alternative reform measures may be more suitable in order to bring clarity.
A. The Emergence of a Constitutional Convention
It is useful at this point to apply Jennings’s tripartite test to establish if a convention
exists. Firstly, what are the precedents? 114 Next, did the actors in the precedents
believe that they were bound by a rule? 115 And finally, is there a reason for the
rule?116 Applying this test, there is a clear ‘reason for the rule’. Gavin Philipson sums
up this reason well: ‘To allow the Commons to perform its constitutional role as a
check upon the executive, ensuring democratic scrutiny of a vitally important
decision.’117 Marshall’s view of conventions as the ‘critical morality’, as opposed to
the ‘positive morality’, of the constitution implies that it is the third part of Jennings’
test, which is the sine qua non of a convention.118 Therefore, as Jennings states ‘a
single precedent with a good reason may be enough to establish the rule.’119 The
simple fact is that constitutional actors have treated the vote in 2003 as the
foundational precedent.
However, despite the well-established and accepted status120 of this test there
are complications. The second criterion seems to imply as Jeremy Waldron proposes,
that these are ‘rules that pull themselves up by their own bootstraps’ since ‘if they
weren’t accepted by those they bind, they wouldn’t be rules at all.’ 121 It is arduous to
argue that governmental players believe themselves to be completely bound by the
rule. Therefore, a test which discusses the ‘precedents’ and the specific beliefs of the
actors in those precedents is too narrow an enquiry. Notwithstanding this, it is
difficult to see how it is possible for actors in the initial case to have considered
themselves to be bound by a rule, which was not then existent. 122 As a result, it is
Ivor Jennings, The Law and the Constitution (5th edn, University of London Press 1959) 136.
ibid.
116 ibid.
117 Gavin Philipson, ‘’Historic’ Commons’ Syria Vote: The Constitutional Significance (Part 1)’ (UK
Constitutional Law Association, 19 September 2013)
<http://ukconstitutionallaw.org/2013/09/19/gavin-phillipson-historic-commons-syria-vote-theconstitutional-significance-part-i/> accessed 17 November 2015.
118 For a more detailed discussion of ‘positive morality’ and ‘critical morality,’ see Peter Russell,
‘Constitutional Conventions: The Rules and Forms of Political Accountability’ (1986) 36(2) University
of Toronto Press 221, 223. The idea of conventions as the ‘critical morality’ of the constitution means
they are conceived as ‘the rules that the political actors ought to feel obliged by, if they have
considered the precedents and reasons correctly’. See TRS Allan, The Sovereignty of Law: Freedom,
Constitution and Common Law (OUP 2013) 60.
119 Ivor Jennings, The Law and the Constitution (5th edn, University of London Press 1959) 136.
120 This test has been accepted worldwide as discussed in the following article, with reference to the
Canadian Supreme Court, see Peter Russell, ‘Constitutional Conventions: The Rules and Forms of
Political Accountability’ (1986) 36(2) University of Toronto Press 221.
121 Jeremy Waldron, The Law (Routledge 1990) 64; Joseph Jaconelli, ‘Do Constitutional Conventions
Bind?’(2005) 64 Cambridge Law Journal 149, 150.
122 Gavin Philipson, ‘’Historic’ Commons’ Syria Vote: The Constitutional Significance (Part 1)’ (UK
Constitutional Law Association, 19 September 2013)
<http://ukconstitutionallaw.org/2013/09/19/gavin-phillipson-historic-commons-syria-vote-theconstitutional-significance-part-i/> accessed 17 November 2015.
114
115
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plausible to conclude that Jennings’ second principle is to be disregarded in relation
to the first precedent.
Additionally, it appears confusion exists regarding what constitutes the birth
of a constitutional convention. Malcolm Rifkind proposes that where a constitutional
lawyer or theorist uses the word ‘convention’ he or she is using it in a ‘very careful,
prescribed and detailed sense’, but when used by a politician in the middle of a crisis
the term ‘does not necessarily (…) [have] precisely the same significance.’ 123
Therefore, perhaps these declarations of a newly established convention constitute a
‘premature conclusion’,124 especially since some key military decisions have been
taken without ‘sufficient’ political oversight. In 2006 ministers took little interest in
the placement of British forces in Helmand, a province in Afghanistan, and were not
consulted when troops moved into northern areas, radically altering the nature of
the operation.125 Perhaps the impact of the Iraq War on the subsequent development
of Parliament’s role has been exaggerated.
However, it is puzzling, as recognised by many influential writers on the
subject (for example, Dicey), that though conventions have no formal legal
enforcement, they are nevertheless followed. 126 The Lords Constitution Committee
argues that: ‘Whilst a convention is not justiciable, it is regarded by all relevant
parties as binding. Constitutional conventions may therefore be regarded as
practices, which are politically binding, (…) but not legally binding.’127
Essentially, conventions will be obeyed because of political difficulties which
may follow if they are disobeyed. Many political leaders now justifiably argue that it
would be impossible for the Government to make a decision to enter a conflict
without Parliament’s vote. Nick Clegg proposes that this situation is now
‘unimaginable.’ 128 The conflict in Libya during 2011 129 was pivotal, as the
Government granted a debate because it believed it was required to do so under the
Law in Action, ‘Can the PM Go to War?’ (BBC Radio 4, 23 October 2014)
<www.bbc.co.uk/programmes/b04lq28r> accessed 17 November 2015; TRS Allan, The Sovereignty of
Law: Freedom, Constitution and Common Law (OUP 2013) 65.
124 Colin Warbrick, ‘The Governance of Britain’ (2008) 57 ICLQ 209, 211.
125 The Government confined itself to making statements to Parliament about its intentions without
providing the opportunity for a full-scale debate or vote. See James De Waal, Depending on the Right
People: British Political-Military Relations, 2001- 2010 (Chatham House (The Royal Institute of
International Affairs), November 2013) vi
<www.chathamhouse.org/sites/files/chathamhouse/public/Research/International%20Security/ch
r_deWaal1113.pdf> accessed 17 November 2015.
126 In some circumstances a breach of convention may result in a breach of law. For examples, see AV
Dicey, Introduction to the Study of the Law of the Constitution (10th edn, Macmillan 1961) 446; Ivor
Jennings, The Law and the Constitution (5th edn, University of London Press 1959) 128.
127 House of Lords Select Committee on the Constitution, The Pre-emption of Parliament (HL Paper 165,
1 May 2013) 11 <www.publications.parliament.uk/pa/ld201213/ldselect/ldconst/165/165.pdf>
accessed 17 November 2015.
128 HC Deb 15 May 2007, vol 460, col 492; Andrew Sparrow, ‘Clegg Questioned by MPs about
Scotland and Constitutional Reform: Politics Live Blog’ The Guardian (London, 9 September 2014)
<www.theguardian.com/politics/blog/live/2014/sep/09/clegg-questioned-by-mps-about-scotlandand-constitutional-reform-politics-live-blog> accessed 17 November 2015.
129 This action was approved by a vote of 557 to 13. See HC Deb, 21 March 2011, vol 525, col 802.
123
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existing convention.130 Thus, the vote over Libya satisfied all three of the criteria in
the Jennings test, conveying progression towards a basic convention, though it is
important to acknowledge that the debate was retrospective. Consequently, as
Jennings claims, conventions ‘provide the flesh which clothes the dry bones of the
law.’131 This implies that conventions allow decision-makers easily to keep in touch
with societal progressions. In most cases conventions can be easily amended to
reflect different circumstances faced by decision-makers in the twenty-first century
by the birth of a new precedent.
Parliament was likewise recalled in September 2014 for approval to bomb the
Islamic State;132 does Britain now have a clear convention, albeit a recent one? It
would appear that ideally before a commitment to take military action the
Government should secure a parliamentary debate and abide to some extent by the
decision of the House. Yet Parliament’s approval of action against the Islamic State
in Iraq demonstrates that MPs, in the light of Syria, are not completely averse to the
use of force as a foreign policy tool. 133 The Government acknowledged this
convention in 2011134 and it has henceforth been included in the Cabinet’s Manual.135
It states that the convention should be observed apart from in emergencies where
such action would not be feasible or appropriate. 136 If the political actors have
considered the precedents and reasons correctly they ought to feel obligated to
comply with the convention.137 However, the substance of the new convention is
open to debate due to differences in past precedents and the Government’s choice
not to enforce the dictum in certain circumstances.
B. Is the Current Position Satisfactory?
Undeniably, there has been a ‘seismic shift in the British constitution’; an evolution
that has crept up quietly but which ultimately serves to constrain the executive and
Gavin Philipson, ‘’Historic’ Commons’ Syria Vote: The Constitutional Significance (Part 1)’ (UK
Constitutional Law Association, 19 September 2013)
<http://ukconstitutionallaw.org/2013/09/19/gavin-phillipson-historic-commons-syria-vote-theconstitutional-significance-part-i/> accessed 17 November 2015 (emphasis added).
131 Ivor Jennings, The Law and the Constitution (5th edn, University of London Press 1959) 81.
132 This action was approved by a vote of 524 to 43. See HC Deb 26 September 2014 vol 585 col 1360.
133 James Strong, ‘The Accidental Prerogative: Why Parliament Now Decides on War’ (Political
Insight, 2 November 2014) <www.psa.ac.uk/insight-plus/blog/accidental-prerogative-whyparliament-now-decides-war> accessed 17 November 2015.
134 HC Deb 10 March 2011, vol 524, col 1066.
135 Cabinet Office, The Cabinet Manual: A Guide to Laws, Conventions and Rules on the Operation of
Government (1st edn, October 2011) 44
<www.gov.uk/government/uploads/system/uploads/attachment_data/file/60641/cabinetmanual.pdf> accessed 17 November 2015.
136 ibid.
137 Nick Barber, ‘Can Royal Assent Be Refused on the Advice of the Prime Minister?’ (UK
Constitutional Law Association, 25th September 2013)
<http://ukconstitutionallaw.org/2013/09/25/nick-barber-can-royal-assent-be-refused-on-theadvice-of-the-prime-minster/> accessed 17 November 2015.
130
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empower Parliament.138 Critically, the nature of a convention means that the maxim
can be brought to an end simply if political players choose not to enforce it, or no
longer believe it exists. A future Parliament may yet decide to give up its new
prerogative, as due to the conventional nature of the power, it is not enshrined in
law.139 As a result, it is evident that ‘most constitutional conventions are putty in the
hands of the executive,’ 140 since the Prime Minister is still free to act without
involving Parliament. Fundamentally, the executive has a strong interest in
maintaining its freedom to act; they will not want to let go of unfettered power.141
Joshua Rozenburg furthers this argument: ‘If presidents and prime ministers are
sure they are acting in the best interests of those who elected them, they will still be
free to act. What emerged (…) is, after all, just a convention.’142
Evidently a pattern is developing – but is Britain out of its depth? Has this all
happened too fast and without any real thought for the constitutional consequences?
Gray and Lomas affirm this view and fear ‘the Iraq and Syria votes mean that this
particular genie is well out of the bottle.’143 Accordingly, Peter Harris believes ‘the
seeds sown in 2003 have long since sprouted and now seem poised to take root as a
fixture of the British constitutional system.’144 Despite it being most likely that the
political players did not intend to create a convention, they are now bound by it.
Conventions cannot be enforced in the courts but these precedents are difficult to
ignore.145 As discussed earlier, Tony Blair brought the original vote more ‘as a matter
of political necessity than out of a sense of constitutional obligations.’ 146 Yet there are
James Hallwood, ‘Comment: The Syria Vote Was a Triumph of Parliamentary Sovereignty’ (The
Constitutional Society, 30 August 2013) <www.consoc.org.uk/2013/08/comment-the-syria-vote-wasa-triumph-of-parliamentary-sovereignty/> accessed 17 November 2015.
139 James Strong, ‘The Accidental Prerogative: Why Parliament Now Decides on War’ (Political
Insight, 2 November 2014) <www.psa.ac.uk/insight-plus/blog/accidental-prerogative-whyparliament-now-decides-war> accessed 17 November 2015.
140 Stuart Weir, ‘’Not in Our Name’: Why MPs Remain Powerless to Stop Britain Going to War’
(OpenDemocracy, 25 March 2013) <www.opendemocracy.net/ourkingdom/stuart-weir/‘not-in-ourname’-why-mps-remain-powerless-to-stop-britain-going-to-war> accessed 17 November 2015.
141 HL Deb 1 May 2007, vol 691, col 983.
142 Joshua Rozenberg, ‘Syria Intervention: Is There a New Constitutional Convention?’ The Guardian
(London, 2 September 2013) <www.theguardian.com/law/2013/sep/02/syria-military-actionconstitutional-convention> accessed 17 November 2015.
143 James Gray and Mark Lomas, ‘Is a Commons Vote a Better Way of Taking Britain to War than the
Royal Prerogative Was?’ New Statesman (London, 2 September 2014)
<www.newstatesman.com/politics/2014/09/commons-vote-better-way-taking-britain-war-royalprerogative-was> accessed 18 November 2015.
144 Peter Harris, ‘The Implications of the Syria Vote: How Britain Goes to War (or Not)’
(OpenDemocracy, 11 September 2013) <www.opendemocracy.net/ourkingdom/peterharris/implications-of-syria-vote-how-britain-goes-to-war-or-not> accessed 18 November 2015.
145 For example, the Queen must give her assent to a bill that is passed by both Houses of Parliament.
However, if the Queen refused, there would be a gross violation of usage, but the matter is not
recognised under English Law and therefore could not be brought before judges to enforce it. Dicey
discusses this in depth. See Albert V Dicey, Introduction to the Study of the Law of the Constitution (10th
edn, Macmillan 1961) 440.
146 Gavin Philipson, ‘’Historic’ Commons’ Syria Vote: The Constitutional Significance (Part 1)’ (UK
Constitutional Law Association, 19 September 2013)
<http://ukconstitutionallaw.org/2013/09/19/gavin-phillipson-historic-commons-syria-vote-theconstitutional-significance-part-i/> accessed 18 November 2015.
138
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many examples of the executive bypassing Parliament in the past without petulance.
In 1995 the RAF joined an almost forgotten air campaign that brought the civil war
in Bosnia to an end.147 Many are unfamiliar with this event148 but in fact the RAF
carried out 144 air-strikes and at the time no complaints regarding the lack of
parliamentary involvement were made.149
Perhaps the Royal Prerogative has been set aside without any reasonable
thought concerning its replacement. Unquestionably, this is not the correct basis for
immense constitutional reform. As Mark Lomas proposes, ‘We need to quickly come
up with an equally workable, robust, and durable alternative mechanism.’150 It is
critical that an urgent solution be provided in order to alleviate the national
emasculation which has ensued.
On the other hand, in an idiosyncratic way the British Constitution has
quietly delivered. The uncodified and complicated constitution has shown that it is
also an organic and pragmatic creature.151 One may argue that the imperfections of
the constitution itself are often mitigated by its ability to evolve and adapt to
changes in society. In Britain, a democratic state that emphasises executive
accountability to Parliament, constitutional obligations exist based neither on
legislation nor on judicial decisions. These rules may continue in force long after the
original reasons for them are forgotten.152 While in some respects such a system may
have its benefits, further clarification and strengthening is needed to define
Parliament’s role, firstly to uphold the House’s original resolution against the
Government’s equivocation, and secondly to ensure that decisions to commit troops
abroad will be subject to parliamentary scrutiny in the House.153
It cannot be denied that the previous system is now not operational and very
urgently needs fixing or replacing. However, until Parliament’s role is clarified and
definitive steps are taken, Britain’s reputation will remain uncertain and the respect
of her allies will quickly turn to contempt as her inability to lead or take decisive
action becomes ever more apparent.
David Blair, ‘When Did We Decide that Parliament Must Always Vote on Any Form of Military
Action Whatsoever?’ The Telegraph (London, 19 August 2014)
<http://blogs.telegraph.co.uk/news/davidblair/100283480/when-did-we-decide-that-parliamentmust-always-vote-on-any-form-of-military-action-whatsoever/> accessed 20 November 2014.
148 ibid.
149 Likewise, in 2000 the Labour Government intervened in Sierra Leone by deploying 1,500 troops
and again there was no vote. See David Blair, ‘When Did We Decide that Parliament Must Always
Vote on Any Form of Military Action Whatsoever?’ The Telegraph (London, 19 August 2014)
<http://blogs.telegraph.co.uk/news/davidblair/100283480/when-did-we-decide-that-parliamentmust-always-vote-on-any-form-of-military-action-whatsoever/> accessed 20 November 2014.
150 James Gray and Mark Lomas, Who Takes Britain to War? (The History Press 2014) 163.
151 James Hallwood, ‘War, Peace and Parliament: Experts Respond to the Government’s Defeat on
Syrian Intervention’ (The London School of Economics and Political Science, 2 September 2013)
<http://blogs.lse.ac.uk/politicsandpolicy/war-peace-and-parliament-experts-respond-to-thegovernments-defeat-on-syrian-intervention/> accessed 18 November 2015.
152 AW Bradley and KD Ewing, Constitutional and Administrative Law (14th edn, Pearson Education
Limited 2007) 25.
153 Stuart Weir, ‘’Not in Our Name’: Why MPs Remain Powerless to Stop Britain Going to War’
(OpenDemocracy, 25 March 2013) <www.opendemocracy.net/ourkingdom/stuart-weir/‘not-in-ourname’-why-mps-remain-powerless-to-stop-britain-going-to-war> accessed 17 November 2015.
147
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5. The Necessity for Parliamentary Involvement
The accountability of those in authoritative positions is a fundamental element of
democracy. Nonetheless, it is a highly complex concept, with many elusive and even
contradictory meanings. 154 Nigel White defines the term as the means by which
‘those in power and making decisions should have to account for those decisions to
their peers, and to the electorate.’155 With regard to war-powers in Britain, increased
parliamentary participation is a critical factor in the ongoing struggle to address the
unequal balance of power between an overly dominant executive and a weak
Parliament in order to make Government truly accountable.156
Ultimately, if Parliament demonstrates its support for an engagement, there
will be little for a Prime Minister to lose by allowing the vote.157 By permitting its
involvement he or she stands to gain both substantive and perceived legitimacy,158
and a significant degree of political cover if the decision proves erroneous. 159 For
example, Jack Straw advises: ‘I dread to think what the situation would have been
(…) if we had not put the decision to go to war in Iraq to the House.’ 160 However,
parliamentary approval not only enhances legitimacy, but also in the long run will
restore trust and confidence in politics. The last decade has been notable not merely
for its controversial wars but for the exposure of inherent failures in major British
state institutions, which have damaged Britain’s political reputation and have left
the public somewhat disheartened and less willing to trust the information it is
given.161 Evidently, there is now a public appetite fully to investigate policies rather
Graham P Thomas, ‘United Kingdom: The Prime Minister and Parliament’ (2004) 10(2-3) The
Journal of Legislative Studies 4.
155 Nigel D White, Democracy Goes to War: British Military Deployments under International Law (OUP
2009) 269.
156 Stuart Weir, ‘’Not in Our Name’: Why MPs Remain Powerless to Stop Britain Going to War’
(OpenDemocracy, 25 March 2013) <www.opendemocracy.net/ourkingdom/stuart-weir/‘not-in-ourname’-why-mps-remain-powerless-to-stop-britain-going-to-war> accessed 17 November 2015.
157 For the purposes of this analysis the primary focus will be on increasing the participation of the
elected legislative body in British politics: the House of Commons. However, it is acknowledged that
there is an existing debate over the role of the House of Lords in conflict decisions. For further
information see House of Lords Select Committee on the Constitution, Waging War: Parliament’s Role
and Responsibility (HL Paper 235 – I, 27 July 2006) 38
<www.publications.parliament.uk/pa/ld200506/ldselect/ldconst/236/236i.pdf> accessed 18
November 2015.
158 House of Lords Constitution Committee, Constitutional Arrangements for the Use of Armed Force (HL
Paper 46, 24 July 2013) 14
<www.publications.parliament.uk/pa/ld201314/ldselect/ldconst/46/46.pdf> accessed 18
November 2015.
159 James Strong, ‘The Accidental Prerogative: Why Parliament Now Decides on War’ (Political
Insight, 2 November 2014) <www.psa.ac.uk/insight-plus/blog/accidental-prerogative-whyparliament-now-decides-war> accessed 17 November 2015.
160 House of Lords Constitution Committee, Constitutional Arrangements for the Use of Armed Force (HL
Paper 46, 24 July 2013) 14
<www.publications.parliament.uk/pa/ld201314/ldselect/ldconst/46/46.pdf> accessed 18
November 2015.
161 The financial crisis exposed immense shortcomings in government regulation of a powerful and
emphatic banking sector. The parliamentary expenses scandal likewise portrayed a critically
important national institution in a way that the country found wholly unacceptable. See James De
154
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than assume what politicians say is completely accurate.162 David Cameron suggests
‘restoring trust in politics means restoring trust in Parliament – and one way to do
that is to enhance the role of Parliament in scrutinising the Government’s
decisions.’163 Mr Cameron’s argument is justifiable and confirms the importance of
Parliament’s role in exercising prospective oversight of the executive’s decisionmaking.
However, it is apparent that there are commentators, albeit a minority, who
are fundamentally opposed to Parliament having a role in the deployment of troops.
Michael Gove states:
I have an unfashionable view, which is that the legislature shouldn’t fetter the
actions of the executive unnecessarily when it comes to matters of life and death
and necessary military action. I think there is a change in the way MPs see their
role.164
Gove suggests that, in essence, the executive is appointed to make these decisions
and the Commons will scrutinise their choices if appropriate. Clearly, as Lord Hurd
proposes, ‘[w]e should only go into major conflict with a very strong measure of
authority behind the Government’s decision.’165 Undoubtedly problems arise where
Parliament appears not to support a proposed intervention since there is a risk that
conflict decisions could become embroiled in ‘politicisation’. Roger Green argues
that ‘National unity is always of paramount importance’ and that ‘there is no place
for attempts at party political advantage.’166 The Government and the country as a
whole were publically humiliated when rebel Conservative and Liberal Democrat
MPs, together with the Labour Party, removed their support for the Prime Minister’s
motion over Syria, which then conveyed a complete lack of agreement on Britain’s
next steps. This has landed Britain in unprecedented territory and has arguably
undermined the credibility of the country to its allies. However it must be
remembered that ‘even the most presidential of Prime Ministers do not govern in a
Waal, Depending on the Right People: British Political-Military Relations, 2001-2010 (Chatham House (The
Royal Institute for International Affairs), November 2013) 32
<www.chathamhouse.org/sites/files/chathamhouse/public/Research/International%20Security/ch
r_deWaal1113.pdf> accessed 18 November 2015.
162 The Iraq experience also suggests that it may become normal for detailed inquiries to be conducted
into all major British deployments, albeit after their conclusion. See ibid 33.
163 David Cameron, ‘Modernisation with a Purpose’ (Conservative Party Speeches, London, 6
February 2006) <http://conservative-speeches.sayit.mysociety.org/speech/600142> accessed 18
November 2015.
164 Isabel Oakeshott and Jack Grimston, ‘Gove: PM Must Have Final Say on War’ The Sunday Times
(London, 29 September 2013) <www.thesundaytimes.co.uk/sto/news/Politics/article1320617.ece>
accessed 18 November 2015.
165 House of Commons Public Administration Select Committee, Taming the Prerogative: Strengthening
Ministerial Accountability to Parliament (HC 422, 4 March 2004) 9
<www.publications.parliament.uk/pa/cm200304/cmselect/cmpubadm/422/422.pdf> accessed 18
November 2015.
166 Roger Green, Review: Crown versus Parliament: Who Decides on Going to War? (UK Defence Forum, 22
September 2010) <www.defenceviewpoints.co.uk/reviews/review-crown-versus-parliament-whodecides-on-going-to-war> accessed 20 February 2014.
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political vacuum.’167 The Royal Prerogative cannot be characterised as some sort of
‘personal uninhibited mandate’ 168 – this is a hugely simplistic observation. The
prerogative avoids the risk of an otherwise perfectly legitimate military action being
thwarted by the opposition seeking party political advantage or by pacifists. 169
The role of the Prime Minister is consistently to act in the nation’s best
interests and this must not be hindered. It can be claimed that given the gravity of
their decisions, Prime Ministers should not be forced to deal with the consequences
of a lost vote. James Gray supports this view: ‘Parliamentary votes on war should
only be used for propaganda and morale purposes.’170 Thus, the parliamentary view
ought to be obtained and respected, but division should never be used truly to
decide whether or not to go to war. Healthy discussion, and some disagreement, in
Parliament reinforces the role of democracy, since if there is major disparity in public
opinion then this should be reflected in Parliament.171
However, this apparent ‘democratisation’ of war could have longstanding
and far-reaching constitutional, diplomatic and military consequences. Alistair Burt
firmly believes that the Government should take executive action and then inform
Parliament; if it disagrees then the issue of a vote of no confidence arises. 172 He
presents a realistic view: ‘I don’t think you can handle foreign affairs by having to
convince 326 people each time you need to take a difficult decision.’ 173 Is it really
appropriate to delegate this decision to 650 MPs? David Blair proclaims that if
parliamentary approval is vital, ‘at best, our decision-making in a time of crisis
would be delayed. At worst, it could be paralyzed.’174 Clearly the efficiency of a
deployment must not be curtailed by the need to seek approval from Parliament.
Britain’s response to an international crisis would be slowed down and complicated
Peter Harris, ‘The Implications of the Syria Vote: How Britain Goes to War (or Not)’
(OpenDemocracy, 11 September 2013) <www.opendemocracy.net/ourkingdom/peterharris/implications-of-syria-vote-how-britain-goes-to-war-or-not> accessed 18 November 2015.
168 James Gray and Mark Lomas, Who Takes Britain to War? (The History Press 2014) 83 (emphasis
added).
169 James Gray, ‘Crown versus Parliament: Who Decides on Going to War?’ (Royal College of Defence
Studies, July 2003) 4 < www.ukdf.org.uk/assets/downloads/GR175CrownversusParliamentWhoDecidesonGoingtoWarbyJamesGrayMP.pdf> accessed 18 November 2015.
170 ibid 28.
171 Arguably voting against the Government ‘is not unpatriotic but simply an exercise of their
democratic rights which need not harm the international reputation of their country.’ See Dirk Peters,
‘War, Peace and Parliament: Experts Respond to the Government’s Defeat on Syrian Intervention’
(The London School of Economics and Political Science, 2 September 2013)
<http://blogs.lse.ac.uk/politicsandpolicy/war-peace-and-parliament-experts-respond-to-thegovernments-defeat-on-syrian-intervention/> accessed 18 November 2015.
172 Patrick Wintour & Nicholas Watt, ‘Alistair Burt Reveals Anger over Syria Vote at Westminster’ The
Guardian (London, 30 December 2013) <www.theguardian.com/politics/2013/dec/30/alistair-burtanger-syria-westminster> accessed 18 November 2015.
173 ibid.
174 David Blair, ‘When Did We Decide That Parliament Must Always Vote on Any Form of Military
Action Whatsoever?’ The Telegraph (London, 19 August 2014)
<http://blogs.telegraph.co.uk/news/davidblair/100283480/when-did-we-decide-that-parliamentmust-always-vote-on-any-form-of-military-action-whatsoever/> accessed 18 November 2015.
167
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which could ultimately serve to reduce its influence in the world. 175
Notwithstanding this, there is valid concern over how qualified MPs are to preside
over decisions to deploy the armed forces.176
Nonetheless, it is of paramount importance that the armed forces know the
nation is supporting them. Lord Guthrie suggests that the questions asked by troops
in the field of conflicts are, ‘Is Parliament, the Government behind us?’ 177 Evidently,
Parliament’s approval will help improve the morale of the armed forces, principally
if Parliament’s view is overwhelmingly supportive. Therefore, as the House of
Lords’ Select Committee states, the prerogative ‘is outdated and should not be allowed to
continue as the basis for legitimate war-making in our 21st century democracy.’ 178 Jack
Straw supports this proposal: ‘The Royal Prerogative has no place in modern
western democracy (…) it has been used as a smoke-screen by Ministers to obfuscate
the use of power for which they are insufficiently accountable.’179
Despite progress over the last decade the formal position of Parliament in
conflict decisions remains ambiguous. It is evident that the current position is
inadequate, but politicians and theorists seem perplexed as to the best way to bring
about reformation. The emerging convention does not provide a sufficient degree of
certainty that the Commons will be consulted in the decision to deploy the armed
forces overseas.
Both the Lords Constitution Committee Paper180 and the Government’s White
Paper 181 considered war-powers in other jurisdictions. 182 However, while
For reasons of relevance and space this article will not assess the effect delay could have on
engaging in military action. However, Malcolm Rifkind discusses how formalisation could affect
Britain’s commitment to international institutions such as NATO and the United Nations. See Law in
Action, ‘Can the PM Go to War?’ (BBC Radio 4, 23 October 2014)
<www.bbc.co.uk/programmes/b04lq28r> accessed 18 November 2015.
176 In reality both Houses benefit enormously from the specific expertise of members who have held
positions in a wide variety of valuable areas such as senior civil service positions, senior positions in
the military and in foreign and diplomatic services. For further information see HL Deb 28 Nov 2013
vol 749 col 1618.
177 House of Lords Constitution Committee, Constitutional Arrangements for the Use of Armed Force (HL
Paper 46, 24 July 2013) 15
<www.publications.parliament.uk/pa/ld201314/ldselect/ldconst/46/46.pdf> accessed 18
November 2015.
178 House of Lords Select Committee on the Constitution, Waging War: Parliament’s Role and
Responsibility (HL Paper 235 – I, 27 July 2006) 41
<www.publications.parliament.uk/pa/ld200506/ldselect/ldconst/236/236i.pdf> accessed 18
November 2015 (emphasis added).
179 Jack Straw, ‘Abolish the Royal Prerogative’ in Anthony Barnett (ed), Power and the Throne: The
Monarchy Debate (Vintage 1994).
180 Jurisdictions assessed include the United States, Australia, Canada, Netherlands, Germany and
France. See House of Lords Select Committee on the Constitution, Waging War: Parliament’s Role and
Responsibility (HL Paper 235 – I, 27 July 2006) 46-57
<www.publications.parliament.uk/pa/ld200506/ldselect/ldconst/236/236i.pdf> accessed 18
November 2015.
181 The Secretary of State for Justice and Lord Chancellor, The Governance of Britain: War Powers and
Treaties: Limiting Executive Powers (Cm 7239, October 2007) 66-88
<www.gov.uk/government/uploads/system/uploads/attachment_data/file/243164/7239.pdf> 18
November 2015.
175
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comparisons are useful in reconsidering the war prerogative, they must always be
analysed cautiously in the light of Britain’s uncodified constitution and the doctrine
of parliamentary supremacy. Each country has its own unique political history and
level of military sophistication,183 though, in broad terms, it is clear that the role of
legislatures in conflict decisions is increasing at an international level.184
In 2001 the member states of the Western European Union unanimously
called for greater democratic accountability and scrutiny in the deployment of the
armed forces.185 In comparison with other European countries, the UK Parliament
has consistently been regarded as a legislature with extraordinarily weak powers
with respect to ‘circumscribing the war-making capabilities of the executive.’ 186
Dieterich, Hummel and Marschall’s survey of parliamentary ‘war-powers’ places the
UK among four other democracies in which such powers were found to be weak.187
Moreover, a clear majority, 15 out of 25 democracies surveyed, have either ‘strong’
or ‘very strong’ parliamentary war-powers. 188 This systematic comparison of
parliamentary control provisions across states enables conclusions to be drawn
regarding the development of control procedures internationally.189 It is clear that
Britain should follow the international trend towards increasing democracy by
reforming war-powers and bringing the country into line with arrangements in
other nations.
For an in-depth examination of different democratic countries’ constitutional practices on war
powers see Charlotte J Ku and K Harold, Democratic Accountability and the Use of Force in International
Law (CUP, December 2002); Claire Taylor and Richard Kelly, Parliamentary Approval for Deploying the
Armed Forces: An Introduction to the Issues (House of Commons Library, Research Paper 08/88,
December 2008) 41-55.
183 Claire Taylor and Richard Kelly, Parliamentary Approval for Deploying the Armed Forces: An
Introduction to the Issues (House of Commons Library, Research Paper 08/88, December 2008) 41.
184 Anne Wittman proposes that ‘executives in democratic nations are becoming wary of sending
troops overseas without consulting their legislatures.’ See Anne Wittman, ‘Voting For and Against
War’ (2007) 63(5) The World Today 9.
185 Assembly of Western European Union, National Parliamentary Scrutiny of Intervention Abroad by
Armed Forces Engaged in International Missions: The Current Position in Law (2001) <www.bits.de/CESDPA/WEU1762.pdf> accessed 18 November 2015.
186 Stuart Wilks–Heeg and Andrew Black, ‘Despite David Cameron’s Defeat on Intervening in Syria,
the UK Parliament Actually Has Relatively Weak War Powers Compared to Legislatures in Other
Democracies’ (The London School of Economics and Political Science, 30 August 2013)
<http://blogs.lse.ac.uk/europpblog/2013/08/30/despite-david-camerons-defeat-on-intervening-insyria-the-uk-parliament-actually-has-relatively-weak-war-powers-compared-to-legislatures-in-otherdemocracies/> accessed 18 November 2015.
187 Sandra Dieterich, Hartwig Hummel and Stefan Marschall, Parliamentary War Powers: A Survey of 25
European Parliaments (Geneva Centre for the Democratic Control of the Armed Forces, Paper 21, 2010)
72 <www.philfak.uniduesseldorf.de/fileadmin/Redaktion/Institute/Sozialwissenschaften/
Hummel_ PAKS_2010_01.pdf> accessed 15 th February 2015.
188 ibid.
189 Wolfgang Wagner, Dirk Peters and Cosima Glahn, Parliamentary War Powers around the World,
1989-2004. A New Dataset (Geneva Centre for the Democratic Control of Armed Forces (DCAF), Paper
no 22, 2010) 12 < www.dcaf.ch/content/download/35832/526881/file/OP_22.pdf> accessed 18
November 2015.
182
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6. The Formalisation of Parliament’s Role in Military Action
As has been previously observed,190 it is a ‘cardinal principle’ of the constitution that
ministers are responsible to Parliament. 191 Consequently the time has come to
respond to calls for war-powers to be more profoundly anchored in the consent of
the legislature.192 However, there are clear difficulties in invoking a straightforward
and effective solution since the issue is ‘a great deal more complex than once
thought.’193
Two main options for reform exist. Firstly, and most radically, the prerogative
could be abolished and substituted with a statute, which would set out the
procedure to be followed whereby the legislature may authorise the use of force in
specific circumstances. In considering all of the arguments the second option is the
more plausible and realistic – to ensure the recent convention is ‘firmed up’194 by
way of a House of Commons resolution. This final chapter will assess the possible
future of war-powers by examining the various options for reform and will stress the
importance of establishing a parliamentary resolution.
A. Is Formalisation the Way Forward?
The main political parties and more fundamentalist reformers favour formalising
Parliament’s role in legislation, urging ‘the total surrender of the power to decide to
the will of the House of Commons.’195 Nick Clegg believes that the role of Parliament
should be ‘as strengthened and as fixed as possible.’ 196 Arguably legislation would
provide transparency and clarity to Parliament’s role, thus ensuring that the
Government could not bypass the parliamentary process without good cause. Jack
House of Lords Select Committee on the Constitution, The Accountability of Civil Servants (HL Paper
61, 20 November 2012) 10
<www.publications.parliament.uk/pa/ld201213/ldselect/ldconst/61/61.pdf> accessed 18
November 2015.
191 House of Lords Constitution Committee, Constitutional Arrangements for the Use of Armed Force (HL
Paper 46, 24 July 2013) 14
<www.publications.parliament.uk/pa/ld201314/ldselect/ldconst/46/46.pdf> accessed 18
November 2015.
192 House of Commons Public Administration Select Committee, Taming the Prerogative: Strengthening
Ministerial Accountability to Parliament (HC 422, 4 March 2004) 17
<www.publications.parliament.uk/pa/cm200304/cmselect/cmpubadm/422/422.pdf> accessed 18
November 2015.
193 House of Commons Political and Constitutional Reform Committee, Parliament’s Role in Conflict
Decisions: A Way Forward (HC 892, 20 March 2014) 12
<www.publications.parliament.uk/pa/cm201314/cmselect/cmpolcon/892/892.pdf> accessed 18
November 2015.
194 Catherine Haddon, ‘Parliament, the Royal Prerogative and Decisions to Go to War’ (Institute for
Government, 6 September 2013) <www.instituteforgovernment.org.uk/blog/6589/parliament-theroyal-prerogative-and-decisions-to-go-to-war/> accessed 18 November 2015.
195 James Gray and Mark Lomas, Who Takes Britain to War? (The History Press 2014) 163.
196 House of Lords Constitution Committee, Constitutional Arrangements for the Use of Armed Force (HL
Paper 46, 24 July 2013) 8
<www.publications.parliament.uk/pa/ld201314/ldselect/ldconst/46/46.pdf> accessed 18
November 2015.
190
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Straw suggests that it should no longer ‘be a matter of grace and favour by the Prime
Minister as to whether the House is asked for its view.’197 Evidently, the necessary
balance of power between the legislature and the executive is yet to be reached.198
Government goodwill is not enough and a substantive vote should be a more
permanent fixture rather than an act of ‘generosity’ if the Government desires.199
Consequently, in 2011, the Foreign Secretary committed ‘to enshrine in law for the
future the necessity of consulting Parliament on military action.’200 Since then the
Government has justifiably shown no appetite for pursuing this endeavour, and
successive governments and parliamentary committees have opposed this
proposal201 due to a number of serious overriding weaknesses.
One of the primary issues with enacting legislation is the risk of rendering
deployment decisions justiciable, through judicial review.202 By reforming the war
prerogative, the judiciary may find itself in the unprecedented and awkward
position of carrying what should be the legislature’s burden of holding the executive
to account. The courts are ill-suited for this role. Parliament, on the other hand,
provides the proper stage and must embrace full political responsibility. The
Government is clearly sensitive about this prospect since, if parliamentary approval
were specified in primary legislation, the domestic courts might be able to rule on
the lawfulness of a deployment. The legality of a deployment overseas is a matter
which should be resolved between Parliament and Government without interference
from the judiciary. 203 However, the courts have shown increased willingness to
contribute as demonstrated in the recent case of Smith v Ministry of Defence.204 While
it is accepted that the courts would only be involved where there was a serious
ibid 17.
HC Deb 15 May 2007, vol 460, col 503.
199 James Gray, ‘Crown versus Parliament: Who Decides on Going to War?’ (Royal College of Defence
Studies, July 2003) 18 <www.ukdf.org.uk/assets/downloads/GR175CrownversusParliamentWhoDecidesonGoingtoWarbyJamesGrayMP.pdf> accessed 18 November 2015.
200 HC Deb 21 March 2011, vol 525, col 799.
201 Gavin Philipson, ‘“Historic” Commons’ Syria Vote: The Constitutional Significance (Part II) – The
Way Forward’ (UK Constitutional Law Association, 29 November 2013)
<http://ukconstitutionallaw.org/2013/11/29/gavin-phillipson-historic-commons-syria-vote-theconstitutional-significance-part-ii-the-way-forward/> accessed 18 November 2015.
202 This is discussed at length in House of Lords Constitution Committee, Constitutional Arrangements
for the Use of Armed Force (HL Paper 46, 24 July 2013) 18
<www.publications.parliament.uk/pa/ld201314/ldselect/ldconst/46/46.pdf> accessed 18
November 2015.
203 Due to the policy and strategic issues Lord Reid proposes, questions about the instigation of war
are non-justiciable ones that are best left to political processes within the executive and legislative
branches. See Chandler v Director of Public Prosecutions [1964] AC 763, 791 (Lord Reid); Campaign for
Nuclear Disarmament v Prime Minister [2002] EWHC 2759 (QB); House of Commons Political and
Constitutional Reform Committee, Parliament’s Role in Conflict Decisions: A Way Forward (HC 892, 20
March 2014) 15 <www.publications.parliament.uk/pa/cm201314/cmselect/cmpolcon/892/892.pdf>
accessed 18 November 2015.
204 The Supreme Court held that certain actions and decisions of military personnel could give rise to
liability under human rights legislation and the common law of negligence. The GCHQ case also
departed from the time-honoured approach whereby the courts would not question the exercise of
the prerogative but would determine its existence and definable limits. See Council of Civil Service
Unions & Others v Minister for the Civil Service [1985] AC 374; Smith v Ministry of Defence [2013] UKSC
41, [2014] AC 52.
197
198
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failure by the Government to abide by the statute, this susceptibility to challenge
could still have severe adverse effects, particularly on the morale and operational
independence of the armed forces, since they would continually need to have regard
for the ‘judge over their shoulder.’205
Additionally, with formalisation there comes difficulty in creating solid,
workable definitions due to the complexities of precisely defining what is an ‘armed
conflict’ as they can vary greatly in nature and scope. 206 Essentially, it is not possible
to pre-empt all eventualities and the country must respond to individual
circumstances.207 Ironically, it is conceivable that the result of formalisation could be
further uncertainty due to the difficulties in identifying those deployments to which
legislation would apply. 208 If attempts were made truly to understand military
capabilities in the West, and as a nation Britain considered what a legitimate use of
force is, then perhaps credible steps could be made towards establishing a method of
deciding when and how its use is justified.209
Hence, it is clear that the constitutional and legal implications of legislating
require detailed and expert assessment.210 The enactment of legislation is dubious
‘It is of paramount importance that the work that the armed forces do in the national interest
should not be impeded by having to prepare for or conduct active operations against the enemy
under the threat of litigation if things should go wrong.’ See Smith v Ministry of Defence [2013] UKSC
41, [2014] AC 52 [100] (Lord Hope). See also the Joint Committee on the Draft Constitutional Renewal
Bill, Draft Constitutional Renewal Bill (Vol 1, HL Paper I66- I/HC Paper 551-I, 31 July 2008) 88; Thomas
Tugendhat and Laura Croft, The Fog of Law: An Introduction to the Legal Erosion of British Fighting Power
(Policy Exchange 2013) 4
<www.policyexchange.org.uk/images/publications/the%20fog%20of%20law.pdf> accessed 18
November 2015.
206 It has been argued that the most straightforward attitude would be for the term to have the same
meaning as it does in international humanitarian law, under the situations laid out in the Geneva
Convention of 1949. See International Committee of the Red Cross, Geneva Convention Relative to the
Protection of Civilian Persons in Time of War (Fourth Geneva Convention, 12 August 1949); Secretary of
State for Justice and Lord Chancellor, The Governance of Britain: War Powers and Treaties: Limiting
Executive Powers (Cm 7239, October 2007) 25
<www.gov.uk/government/uploads/system/uploads/attachment_data/file/243164/7239.pdf> 18
November 2015.
207 There is also currently no explanation of what constitutes an emergency for the purposes of an
exception under legislation or resolution. Clearly in certain exceptional circumstances it will not be
possible to consult the Commons before making a conflict decision. In these instances retrospective
approval is appropriate. For an in depth study on the issue of retrospectivity see Joint Committee on
the Draft Constitutional Renewal Bill, Draft Constitutional Renewal Bill (Vol 1, HL Paper I66- I/HC
Paper 551-I, 31 July 2008) 92
<www.publications.parliament.uk/pa/jt200708/jtselect/jtconren/166/166.pdf> accessed 18
November 2015.
208 House of Lords Select Committee on the Constitution, Waging War: Parliament’s Role and
Responsibility (HL Paper 235 – I, 27 July 2006) 33
<www.publications.parliament.uk/pa/ld200506/ldselect/ldconst/236/236i.pdf> accessed 18
November 2015.
209 This matter is discussed at length in James Gray and Mark Lomas, Who Takes Britain to War? (The
History Press 2014) 66.
210 James De Waal, Depending on the Right People: British Political-Military Relations, 2001-2010 (Chatham
House (The Royal Institute for International Affairs), November 2013) 34
<www.chathamhouse.org/sites/files/chathamhouse/public/Research/International%20Security/ch
r_deWaal1113.pdf> accessed 18 November 2015.
205
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due to the degree of political and military flexibility available with the current
convention. While the uncertainty of conventions is widely criticised, this flexibility
can be an advantage since it allows for continuous political development.211 Thus, it
is apparent that the crux of the argument is that ‘the relative advantages of certainty
versus flexibility will depend on the context.’212 Each situation must be evaluated
and assessed on its own merits. Such wide discretion offered by convention remains
necessary in order to provide flexibility where an emergency arises.
Ultimately the establishment of a parliamentary resolution would both end
uncertainty as to the existence of a convention and also clarify to an extent its terms,
since such perplexities must be resolved.213 This would ensure that the Government
of-the-day could not unilaterally alter the mechanism as a way of evading the
constraints imposed by the convention,214 thus resolving a key negative feature of
conventions: the body bound by them is frequently responsible for outlining their
content and therefore can dilute the developed practice. Conventions can be fragile
and tenuous, with Lord Hennessy identifying how ‘they can crumble at the touch of
a powerful, insensitive and determined executive.’215 A comprehensive resolution
will effectively formalise Parliament’s role whilst being sufficiently flexible to permit
improvements to be made. 216 It appears to be an equitable compromise between
flexibility and accountability, hence avoiding the risk of blurring the separation of
powers by sanctioning judicial review of conflict decisions.
Recently the Government has shown resistance to implementing legislation
and instead has supported a detailed Commons resolution to certify the
participation of Parliament. 217 Nonetheless, despite the Coalition Government’s
Soft law in the form of conventions is not necessarily flexible. Their assumed flexibility is both
conceptually and historically dubious in some circumstances. For examples, see CJG Sampford,
‘’Recognise and Declare’: An Australian Experiment in Codifying Constitutional Conventions’ (1987)
7 Oxford Journal of Legal Studies 369, 401; Aileen McHarg, ‘Reforming the United Kingdom
Constitution: Law, Convention, Soft Law’ (2008) 71 Modern Law Review 853, 867.
212 Aileen McHarg, ‘Reforming the United Kingdom Constitution: Law, Convention, Soft Law’ (2008)
71 Modern Law Review 853, 867.
213 Gavin Philipson, ‘“Historic” Commons’ Syria Vote: The Constitutional Significance (Part II) – The
Way Forward’ (UK Constitutional Law Association, 29 November 2013)
<http://ukconstitutionallaw.org/2013/11/29/gavin-phillipson-historic-commons-syria-vote-theconstitutional-significance-part-ii-the-way-forward/> accessed 18 November 2015.
214 Adam Tomkins, The Constitution After Scott: Government Unwrapped (Clarendon Press 1998) 62;
Gavin Philipson, ‘“Historic” Commons’ Syria Vote: The Constitutional Significance (Part II) – The
Way Forward’ (UK Constitutional Law Association, 29 November 2013)
<http://ukconstitutionallaw.org/2013/11/29/gavin-phillipson-historic-commons-syria-vote-theconstitutional-significance-part-ii-the-way-forward/> accessed 18 November 2015.
215 HC Deb 28 November 2013, vol 571, col 1615.
216 It is important to acknowledge that while there is nothing to guarantee that a process set out in a
resolution would be binding it would at least ensure there is transparency by reducing the convention
to writing. See Erskine May, Parliamentary Practice (23rd edn, Butterworths Law 2004) 420.
217 Lord Chancellor and Secretary of State for Justice, Government Response to the Report of the Joint
Committee on the Draft Constitutional Renewal Bill (Cm 7690, July 2009) 46
<www.gov.uk/government/uploads/system/uploads/attachment_data/file/238549/7690.pdf>
accessed 18 November 2015; Peggy Ducoulombier, ‘Rebalancing the Power between the Executive
and Parliament: The Experience of French Constitutional Reform’ [2010] Public Law 707.
211
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commitment to introduce a war-powers resolution, this has not yet materialised.218 A
draft resolution has not been published since 2008.219 However, this draft was of the
‘most timid and executive friendly nature.’ 220 It is severely watered-down since
maximum flexibility is given to the Prime Minister to decide the timing prior to
approval being sought and requires no retrospective approval where there is an
emergency or where the deployment is secret.221 The Democratic Audit proposes
that the degree of flexibility the Government seeks to retain is ‘precisely the
flexibility that has discredited politics in this country in recent years.’ 222 Clearly,
while a degree of discretion is needed to ensure flexibility in decisions, limits must
apply. The Prime Minister should not have the power to decide the timing of the
debate. The resolution must be amended to require that Parliament be consulted ‘as
soon as reasonably practicable’ after a policy has been formulated favouring military
action.223
Moreover, in the drafting of a new resolution, it must be a prerequisite that
the Prime Minister provide as comprehensive an account as possible of the evidence
justifying the use of force. It is of paramount importance that ministers give accurate
and truthful information to Parliament.224 Information must not be presented in a
biased or idiosyncratic way, leading MPs to support a conflict they would not
tolerate if more information were presented (though admittedly, this is complicated
The Political and Constitutional Reform Committee is still awaiting the Government’s response to
its latest report. To date the Government has stated it is not satisfied that a case for urgency has been
portrayed and has thus only committed to making ‘progress on this matter in a timely and
appropriate manner.’ See House of Commons Political and Constitutional Reform Committee,
Parliament’s Role in Conflict Decisions: Further Government Response (HC 1673, 1 December 2011) 2
<www.publications.parliament.uk/pa/cm201012/cmselect/cmpolcon/1673/1673.pdf> accessed 18
November 2015; House of Commons Political and Constitutional Reform Committee, Parliament’s Role
in Conflict Decisions: An Update (6 September 2013) 3
<www.publications.parliament.uk/pa/cm201314/cmselect/cmpolcon/649/649.pdf> accessed 18
November 2015; House of Commons Political and Constitutional Reform Committee, Parliament’s Role
in Conflict Decisions: A Way Forward (HC 892, 20 March 2014)
<www.publications.parliament.uk/pa/cm201314/cmselect/cmpolcon/892/892.pdf> accessed 18
November 2015.
219 Lord Chancellor and Secretary of State for Justice, The Governance of Britain- Constitutional Renewal
(Cm 7342-I, March 2008) 53-56.
220 Gavin Philipson, ‘“Historic” Commons’ Syria Vote: The Constitutional Significance (Part II) – The
Way Forward’ (UK Constitutional Law Association, 29 November 2013)
<http://ukconstitutionallaw.org/2013/11/29/gavin-phillipson-historic-commons-syria-vote-theconstitutional-significance-part-ii-the-way-forward/> accessed 18 November 2015.
221 Nigel White, Democracy Goes to War: British Military Deployments under International Law (OUP 2009)
282.
222 Joint Committee on the Draft Constitutional Renewal Bill, Draft Constitutional Renewal Bill (Volume
1, HL Paper I66- I/HC Paper 551-I, 31 July 2008) 90.
223 Gavin Philipson, ‘“Historic” Commons’ Syria Vote: The Constitutional Significance (Part II) – The
Way Forward’ (UK Constitutional Law Association, 29 November 2013)
<http://ukconstitutionallaw.org/2013/11/29/gavin-phillipson-historic-commons-syria-vote-theconstitutional-significance-part-ii-the-way-forward/> accessed 18 November 2015.
224 Cabinet Office, The Cabinet Manual: A Guide to Laws, Conventions and Rules on the Operation of
Government (1st edn, October 2011) 38
<www.gov.uk/government/uploads/system/uploads/attachment_data/file/60641/cabinetmanual.pdf> accessed 18 November 2015.
218
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by national security risks associated with consulting the legislature in the public
eye). James Gray elaborates on this argument: ‘It is not possible without
compromising security to release precise details and fresh information that is daily
coming in.’225 By discussing information in Parliament ‘an element of surprise for the
armed forces’ would be removed and intelligence could be compromised.226 As a
result, a third option for reform has been considered: the establishment of a
Parliamentary Joint Select Committee to oversee the armed forces.227 Kenneth Clark
appropriately suggests that this proposal is ’very attractive.’228 Where information
vindicating the use of force raises security issues it could be shared on a confidential
basis with the committee who can then report on whether the proposed action is
justified. 229 This would provide reassurance that an independent endorsement of
information is secured230 and would certify that Parliament is not voting on the basis
of false assertions.
Lord MacLennan cautiously suggests that perhaps it is unwise to reach a final
conclusion about these matters until the Chilcot Inquiry has been released since this
publication will hopefully reveal something about the inner workings of the decision
making process that is not currently known.231 Unquestionably, a failure to rectify
these flaws apparent in the draft resolution will render the reformation attempt
useless in increasing Parliament’s ability to control the Government and will only
serve as ‘a mask over the undemocratic nature of the prerogative.’ 232 However, it
seems that no further action will be taken in the short-term due to the recent change
in Government. The Government’s legislative programme is overcrowded, and
parliamentary time and money is subject to strong competing priorities, but
HC Debate 4 October 2001, vol 372, col 672; James Gray, ‘Crown versus Parliament: Who Decides
on Going to War?’ (Royal College of Defence Studies July 2003) 12
<www.ukdf.org.uk/assets/downloads/GR175CrownversusParliamentWhoDecidesonGoingtoWarbyJamesGrayMP.pdf> last accessed 18 November 2015.
226 ‘War Footing Commons Veto ‘dangerous’ as Doubt Cast over Plans’ The Telegraph (London, 4
January 2013) <www.telegraph.co.uk/news/uknews/defence/9779726/War-footing-Commonsveto-dangerous-as-doubt-cast-over-plans.html> accessed 18 November 2015.
227 House of Lords Select Committee on the Constitution, Waging War: Parliament’s Role and
Responsibility (HL Paper 235 – I, 27 July 2006) 30
<www.publications.parliament.uk/pa/ld200506/ldselect/ldconst/236/236i.pdf> accessed 18
November 2015.
228 ibid 31.
229 Perhaps, the Intelligence and Security Committee established by the Intelligence Services Act 1994
could take on this role since they already have access to sensitive information. The committee is made
up of members of the Commons and Lords, with none permitted to be a Minister of the Crown. For
more information see the Intelligence Services Act 1994, s 10; Gavin Philipson, ‘“Historic” Commons’
Syria Vote: The Constitutional Significance (Part II) – The Way Forward’ (UK Constitutional Law
Association, 29 November 2013) <http://ukconstitutionallaw.org/2013/11/29/gavin-phillipsonhistoric-commons-syria-vote-the-constitutional-significance-part-ii-the-way-forward/> accessed 18
November 2015.
230 House of Commons Public Administration Select Committee, Constitutional Renewal Draft Bill and
White Paper (HC 499, 22 May 2008) 25
<www.publications.parliament.uk/pa/cm200708/cmselect/cmpubadm/499/499.pdf> accessed 18
November 2015.
231 HC Deb 28 November 2013, vol 571, col 1611.
232 David Jenkins, ‘Efficiency and Accountability in War Powers Reform’ (2009) 14 Journal of Conflict
& Security Law 145, 156.
225
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uncertainty in the present situation cannot be allowed to remain – there is a
desperate need for clarity.
B. Is Formalisation Necessary?
Nevertheless, whilst the Crown may retain the prerogative to take the nation to war,
in theory, the Government is accountable to Parliament and is consequently
accountable for any war it engages in. Therefore, Parliament is capable of checking
the executive without any formal constitutional reform due to the Government’s
need to retain the confidence of the Commons. 233 If the Prime Minister and the
Cabinet took Britain into ‘some absurd war that did not have popular support, or
did not have the support of this House, the Government would fail without
question.’234 Perhaps then, as David Jenkins suggests, what is needed with regard to
reform is ‘neither a limiting statute nor questionable attempts to ‘make’ a new
convention,’235 but a more fundamental evaluation of the political ‘unwillingness’ of
MPs under the current party system to exercise parliamentary legislative supremacy
and hold the executive to account for its military endeavours.236 The reality is that
Parliament has generally refrained from interfering with military decisions made
under the prerogative. It is expected that this situation will continue even if warpowers are put on a statutory footing or continue to be subject to conventional
arrangements.
Consequently, whatever reform measures, if any, Parliament and
Government choose to pursue with regard to the war prerogative, the question over
control is essentially political rather than strictly legal. Essentially, it is evident that
the impetus for legislation is driven by political motivations; it seems more about ‘a
political statement about where decisions are taken, rather than to correct
deficiencies in the legal or military process.’237 The question could be posed as to
whether this a plausible reason to implement such extensive constitutional change.
What is certain is that no amount of auxiliary limitations or mechanisms of
enforcement can totally counteract Parliament and, to some extent, the courts’
unwillingness to hold the executive to account. This stance permeates the American
example. In 2004 the select committee 238 considered evidence claiming that
A vote of no confidence was last successfully used in 1979, when the minority Government led by
James Callaghan was defeated in a motion by Margaret Thatcher: ‘This House has no confidence in
Her Majesty’s Government.’ See HC Deb 28 March 1979 vol 965 col 589.
234 HC Deb 21 October 2005, vol 43, col 1108.
235 David Jenkins, ‘Constitutional Reform Goes to War: Some Lessons from the United States’ [2007]
Public Law 258, 260.
236 ibid.
237 House of Lords Constitution Committee, Constitutional Arrangements for the Use of Armed Force (HL
Paper 46, 24 July 2013) 22
<www.publications.parliament.uk/pa/ld201314/ldselect/ldconst/46/46.pdf> accessed 18
November 2015.
238 House of Commons Public Administration Select Committee, Taming the Prerogative: Strengthening
Ministerial Accountability to Parliament (HC 422, 4 March 2004) 9
<www.publications.parliament.uk/pa/cm200304/cmselect/cmpubadm/422/422.pdf> accessed 18
November 2015.
233
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legislation similar to the US War Powers Resolution239 should be implemented in the
UK. Ultimately, the Act is controversial because Presidents have consistently
branded it an unreasonable limitation on their power since they are required to
report to Congress within 48 hours of military forces being deployed into
hostilities. 240 However, in reality, even the introduction of the constitutionally
entrenched declare war clause has not prevented the President from using his war
powers unilaterally, relegating Congress to performing a negative rather than
affirmative role in waging war.241
In an extreme situation where legislative support was deficient and the
Government continued to insist on its military policy, the Prime Minister could lose
the confidence of a majority in the Commons, 242 resulting in the fall of the
Government.243 Though, in practice, the Prime Minister could force authorisation if
politically expedient by implementing the whip system, the real threat to the Prime
Minister and Government lies with rebellious MPs who may disobey the system and
vote of their own accord. Whilst reconciling the need for accountability to
Parliament with the size and sophistication of the bureaucratic executive machine is
difficult, 244 it is fundamental to Britain’s liberal democracy. The British
Government’s effective control of the Commons primarily by a party majority
particularly exacerbates challenges in controlling executive war-powers.245 Given the
grave importance of proper parliamentary accountability, it is time that Parliament
started to control its own destiny. However, for Parliament to have any meaningful
role, both Government ministers and members of Parliament must mutually commit
themselves to institutional co-operation, rather than dominance or deference.246
War Powers Resolution 1973.
War Powers Resolution 1973, s 4(3); David Jenkins, ‘Efficiency and Accountability in War Powers
Reform’ (2009) 14 Journal of Conflict & Security Law 145, 152; James Gray and Mark Lomas, Who
Takes Britain to War? (The History Press 2014) 81.
241 David Jenkins, ‘Constitutional Reform Goes to War: Some Lessons from the United States’ [2007]
Public Law 258, 279.
242 The Fixed-term Parliaments Act 1911 governs confidence motions. See Fixed-term Parliaments Act
1911, s 4.
243 David Jenkins, ‘Constitutional Reform Goes to War: Some Lessons from the United States’ [2007]
Public Law 258, 263.
244 Stuart Wilks-Heeg, Andrew Blick and Stephen Crone, ‘How Democratic Is the UK? The 2012
Audit: The Democratic Effectiveness of Parliament’ (Democratic Audit, Liverpool 2012) para 2.4.3.
<http://democracy-uk-2012.democraticauditarchive.com/parliaments-powers-over-the-executive>
accessed 18 November 2015.
245 Since this paper is a discussion primarily of the legal issues involved in reforming the Royal
Prerogative, and the issue of party politics is primarily political, there will be no debate or solutions
offered in this area. For a detailed discussion on the effect of party politics generally see: Anthony
Staddon, ‘Holding the Executive to Account? The Accountability Function of the UK Parliament’
(2007) 8
<http://siteresources.worldbank.org/PSGLP/Resources/HoldingtheExecuTheAccountabilityFuncti
onoftheUKParliament.pdf> accessed 18 November 2015; Wilfred Swenden and Bart Maddens,
Territorial Party Politics in Western Europe (Palgrave-Macmillan 2009).
246 David Jenkins, ‘Constitutional Reform Goes to War: Some Lessons from the United States’ [2007]
Public Law 258, 259.
239
240
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7. Conclusion
In conclusion, despite the desperate need for parliamentary involvement in decisions
to deploy HM Forces, the specific role of the House of Commons remains unclear.
This analysis has demonstrated the difficulties in implementing a straightforward
and effective solution regarding the developing role of Parliament since there are
considerable benefits and weaknesses on both sides. Ultimately the argument boils
down to a preference for either the executive or the legislature as the eminent
decision-maker, as each branch possesses characteristics that promote efficiency and
accountability. Irrefutably certain matters must be left to the executive, and the
decision to go to war is one of them. However, there is extensive scepticism
surrounding the wisdom of governmental decisions and this has resulted in
reluctance to leave security policy solely in the executive’s hands.
The emergence of a convention extending parliamentary participation,
despite its hasty birth, must be applauded, trusted and respected. Yet, it is evident
that this convention is vague and its terms must be clarified. Given the complications
with legislation, Britain’s next steps must be more cautious and there are legitimate
reasons for enacting a parliamentary resolution. While in Britain’s democracy the
Government must remain the key decision-maker on matters relating to foreign and
defence policy, Parliament must embrace its role as the watchdog of their actions.
Britain will be a more accountable nation and thus its actions will be even more
effective if Parliament’s authorisation is given, despite the fact that the Prime
Minister must retain the authority to carry out the action without Parliament’s
authorisation.
The Prime Minister acts within the complex web that is the uncodified British
Constitution. He or she must secure the support of the nation and its representatives,
since if any leader sought to take the country to war without at least the tacit consent
of Parliament, his position would quickly become untenable. Therefore, it is clear
that the direction of constitutional reform of the Crown’s war prerogative
unquestionably depends upon active civic cognizance by politicians, judges and
most importantly the British electorate. Additionally, it is vital that the question of
who takes Britain to war not be considered narrowly or in isolation, but that it be
evaluated as one aspect of the greater necessity for constitutional reform.
It would appear that the success of the Royal Prerogative in the future may
well depend on the Prime Minister’s strength of personality, the level of trust he
generates and ultimately his oratory skills to persuade both the Commons and the
nation to support his endeavours. It is owed to soldiers both past and present who
have risked or sacrificed their lives in the course of Britain’s long history to enhance
democracy and ensure future military engagements are anchored in the support of
their elected representatives.
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